(PC) Dennis v. Kernan ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MATTHEW DENNIS, No. 2:16-cv-0542 JAM AC P 12 Plaintiff, 13 v. ORDER 14 SCOTT KERNAN, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se and in forma pauperis with this civil rights 18 action, requests appointment of counsel on the ground that it should lead to a speedier resolution 19 of this case and success on plaintiff’s requests to obtain effective treatment for his Hepatitis C. 20 ECF No. 48. Attached to plaintiff’s request are several exhibits demonstrating his unsuccessful 21 efforts to obtain legal representation on his own. This is plaintiff’s fourth request for appointment 22 of counsel, see ECF Nos. 3, 11, 19; his prior requests were denied pending the court’s screening 23 of plaintiff’s successive complaints, see ECF Nos. 14, 26. 24 This case now proceeds on plaintiff’s Third Amended Complaint as screened by the court 25 on April 9, 2020. ECF No. 51. The undersigned’s recommended dismissal of numerous 26 defendants is currently pending with the district judge. Id. Service of process on the remaining 27 defendants is not yet complete. ECF No. 61. Plaintiff’s request for appointment of counsel was 28 filed prior to the court’s decisions on these matters. MAIS SLU VOM TOU ENINIT ENN RAMU PI ee AY ee 1 Under 28 U.S.C. § 1915(e)(1), the district court may request the voluntary assistance of an 2 | available attorney to represent an indigent prisoner in a civil rights case only in certain 3 || “exceptional circumstances.” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. 4 | Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990); see also Mallard v. United States Dist. 5 || Court, 490 U.S. 296, 298 (1989) (district courts do not have authority to require attorneys to 6 || represent indigent prisoners in Section 1983 cases). When determining whether “exceptional 7 || circumstances” exist, the court must consider plaintiff’s likelihood of success on the merits as 8 || well as his ability to articulate his claims pro se in light of the complexity of the legal issues 9 | involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). The burden of demonstrating 10 || exceptional circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such 11 | as lack of legal education and limited law library access, do not establish exceptional 12 || circumstances supporting appointment of counsel. Id. 13 In the present case, plaintiff has demonstrated that he is a capable writer, prolific filer, and 14 || strong advocate for himself. Although the court is unable at this time to assess plaintiff’ s 15 | likelihood of success on the merits of his claims, it is clear that plaintiff is capable of pursuing his 16 || allegations and claims pro se. For these reasons, the court finds that plaintiff does not meet the 17 || exceptional circumstances standard. 18 Accordingly, IT IS HEREBY ORDERED that plaintiffs motion for appointment of 19 | counsel, ECF No. 48, is denied without prejudice. 20 || DATED: May 20, 2020 ~ 21 ththien— Chane ALLISON CLAIRE 22 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28