(PC) Curley v. Dutta ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KEVIN CURLEY, No. 2:17-cv-0105 WBS AC P 12 Plaintiff, 13 v. ORDER 14 RAJA DUTTA, 15 Defendant. 16 17 Plaintiff has requested the appointment of counsel. The United States Supreme Court has 18 ruled that district courts lack authority to require counsel to represent indigent prisoners in § 1983 19 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain exceptional 20 circumstances, the district court may request the voluntary assistance of counsel pursuant to 28 21 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. 22 Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 23 “When determining whether ‘exceptional circumstances’ exist, a court must consider ‘the 24 likelihood of success on the merits as well as the ability of the [plaintiff] to articulate his claims 25 pro se in light of the complexity of the legal issues involved.’” Palmer v. Valdez, 560 F.3d 965, 26 970 (9th Cir. 2009) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). The burden 27 of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common to 28 most prisoners, such as lack of legal education and limited law library access, do not establish 1 || exceptional circumstances that would warrant a request for voluntary assistance of counsel. 2 Plaintiff seeks appointment of counsel on the grounds that his imprisonment will greatly 3 || limit his ability to litigate, the issues are complex and will require significant research and 4 | investigation, he has limited law library access and knowledge of the law, and an attorney would 5 || be better able to present evidence and cross examine witnesses. ECF No. 37 at 1-2. Plaintiff has 6 || previously been advised that these circumstances are common to most prisoners and therefore do 7 || not warrant the appointment of counsel. ECF No. 28 at 2. Furthermore, it has not yet been 8 || determined that this case will go to trial, so any request for counsel based upon trial needs is 9 || premature. Finally, although plaintiff also alleges that the prison he is housed at is under 10 | lockdown and running on a modified program due to the coronavirus, further limiting his law 11 | library access, this situation is currently common to most prisoners. Additionally, it is not clear 12 | that requests for extensions of time, as needed, would be unable to address the delays plaintiff is 13 || experiencing in his access to the law library without the need to appoint counsel. 14 Accordingly, IT IS HEREBY ORDERED that plaintiffs request for the appointment of 15 || counsel, ECF No. 37, is denied. 16 | DATED: March 31, 2020 ~ 17 Attten— Lhar—e_ ALLISON CLAIRE 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28