(PC) Kendrid v. Aguilera ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FORREST KENDRID, No. 2:18-cv-1612 MCE AC P 12 Plaintiff, 13 v. ORDER 14 N. AGUILERA, 15 Defendant. 16 17 Plaintiff, a civil commitment detainee proceeding pro se with a civil rights action, has 18 requested appointment of counsel. 19 The United States Supreme Court has ruled that district courts lack authority to require 20 counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 21 U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the 22 voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 23 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 24 “When determining whether ‘exceptional circumstances’ exist, a court must consider ‘the 25 likelihood of success on the merits as well as the ability of the [plaintiff] to articulate his claims 26 pro se in light of the complexity of the legal issues involved.’” Palmer v. Valdez, 560 F.3d 965, 27 970 (9th Cir. 2009) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). The burden 28 of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common to 1 || most prisoners, such as lack of legal education and limited law library access, do not establish 2 || exceptional circumstances that would warrant a request for voluntary assistance of counsel. 3 Plaintiff requests counsel on the grounds that he is under an involuntary medication order 4 | and the medication he receives leaves him confused and out of touch with reality. ECF No. 29 at 5 1. He also claims that he is illiterate, has limited comprehension, had a stroke that caused 6 || paralysis in his hand, is unable to write, and must rely on other inmates to assist him with his 7 | filings. Id. at 2-3. The circumstances outlined by plaintiff are common to many inmates and 8 || therefore do not demonstrate extraordinary circumstances. Moreover, despite plaintiffs claims 9 || regarding his ability to pursue this case without an attorney, he has thus far been able to 10 | successfully articulate his claims to the court without assistance of counsel. If plaintiff wants to 11 || make a showing of extraordinary circumstances based on his mental health and medical 12 | conditions, he must provide records that support his claimed impairments and that demonstrate 13 || these impairments leave him unable to pursue this case without assistance. 14 Plaintiff has also filed a notice advising that he is not receiving mail from the court. ECF 15 || No. 30. However, he does not identify the last order he received, making it difficult for the court 16 || to determine whether plaintiff has in fact not been receiving his mail. The last order this court 17 || issued was the discovery and scheduling order, which was filed and served on November 13, 18 | 2019. Plaintiff will be provided another copy of the order. 19 Accordingly, IT IS HEREBY ORDERED that: 20 1. Plaintiff’s motion for the appointment of counsel, ECF No. 29, is denied. 21 2. The Clerk of the Court is directed to serve plaintiff with another copy of the discovery 22 || and scheduling order filed November 13, 2019, ECF No. 28. 23 | DATED: January 13, 2020 ~ 24 CtAt0r2— Chane ALLISON CLAIRE 25 UNITED STATES MAGISTRATE JUDGE 26 27 28