(PC) Cervantes v. Burciaga ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RAUL CERVANTES, No. 2:20-cv-0232 AC P 12 Plaintiff, 13 v. ORDER 14 S. BURCIAGA, 15 Defendant. 16 17 Plaintiff has requested the appointment of counsel. ECF No. 45. The United States 18 Supreme Court has ruled that district courts lack authority to require counsel to represent indigent 19 prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In 20 certain exceptional circumstances, the district court may request the voluntary assistance of 21 counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 22 1991); Wood v. 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 wOASe 2 MUU I ee AY eV 1 || exceptional circumstances that would warrant a request for voluntary assistance of counsel. 2 In this case, plaintiff requests counsel on the grounds that this case is set for a settlement 3 || conference and due to his hearing loss, which he alleges was caused by defendant, he requires 4 || people to speak loudly and clearly for him to understand and he would “feel more secure with 5 || someone helping [him] collecting or signing papers.” ECF No. 45 at 2. Plaintiff’s hearing loss 6 | does not constitute an exceptional circumstance that would warrant the appointment of counsel. 7 | Plaintiff does not require counsel to request that those present at the settlement conference speak 8 || loudly and clearly so that he can hear and understand them or to ask them to repeat themselves if 9 || necessary. 10 Accordingly, IT IS HEREBY ORDERED that plaintiffs request for the appointment of 11 || counsel (ECF No. 45) is denied. 12 | DATED: July 14, 2020 ~ 13 Chthien—Chare ALLISON CLAIRE 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28