(PC) Bivins v. Ju ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSEPH BIVINS, No. 2:16-cv-0389 MCE KJN P 12 Plaintiff, 13 v. ORDER 14 DR. JEU, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding pro se, in an action brought under 42 U.S.C. 18 § 1983. On April 14, 2020, the undersigned recommended that defendant Borges’ motion for 19 summary judgment be granted. Plaintiff did not file objections. Rather, on May 15, 2020, 20 plaintiff filed a notice of appeal and a request for appointment of counsel. Plaintiff’s appeal was 21 processed to the Court of Appeals for the Ninth Circuit. On June 26, 2020, the appellate court 22 dismissed plaintiff’s appeal. 23 Plaintiff requests that the court appoint counsel. District courts lack authority to require 24 counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist. 25 Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney 26 to voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 27 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 28 When determining whether “exceptional circumstances” exist, the court must consider plaintiff’s wAIS 6 LY VEO SINE LENG IN RAUCOUS ee OY ee 1 | likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro 2 | se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 3 | (9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel). The 4 | burden of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances 5 || common to most prisoners, such as lack of legal education and limited law library access, do not 6 | establish exceptional circumstances that warrant a request for voluntary assistance of counsel. 7 Having considered the factors under Palmer, and in light of the ruling on defendant’s 8 | motion for summary judgment, the court finds that plaintiff has failed to meet his burden of 9 | demonstrating exceptional circumstances warranting the appointment of counsel at this time. 10 However, because plaintiff did not file objections, but rather chose to file an interlocutory 11 || appeal, the undersigned grants plaintiff an extension of time in which to file objections. 12 Accordingly, IT IS HEREBY ORDERED that: 13 1. Plaintiffs motion for the appointment of counsel (ECF No. 82) is denied without 14 | prejudice; and 15 2. Plaintiff is granted thirty days from the date of this order in which to file objections to 16 || the April 14, 2020 findings and recommendations. 17 | Dated: July 6, 2020 i Aectl Aharon 19 KENDALL J.NE ppivi0389.31 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28