(PC) Bouie v. Willox ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DIRK JA’ONG BOUIE, No. 2:16-cv-0624 JAM AC P 12 Plaintiff, 13 v. ORDER 14 R. WILLOX, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se with a civil rights action, has requested 18 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 cannot afford counsel, has been unable to 4 | find counsel willing to represent him, has been diagnosed as legally blind since 2016, has limited 5 || access to the law library, is a mental health participant, and that counsel would be better able to 6 || present his case at trial. ECF No. 41. The circumstances alleged by plaintiff are common to 7 || many prisoners and therefore do not demonstrate that exceptional circumstances warranting 8 || appointment of counsel exist. Furthermore, it has not yet been determined that this case will 9 | proceed to trial, so any request for appointment of counsel on that basis is premature. The court 10 | further notes that, to date, plaintiff has managed to successfully articulate his claims without the 11 || assistance of counsel, and on the current record, it is not clear that plaintiff is likely to succeed on 12 | the merits, particularly in light of the pending motion for summary judgment based on his alleged 13 | failure to exhaust administrative remedies. 14 Accordingly, IT IS HEREBY ORDERED that plaintiffs motion for the appointment of 15 || counsel, ECF No. 41, is denied. 16 | DATED: January 22, 2020 ~ 17 Attten— Lhar—e_ ALLISON CLAIRE 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28