(PC) Rodriguez v. Cate ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 ERICK EDDIE RODRIGUEZ, No. 2:19-cv-1797 AC P 11 Plaintiff, 12 v. ORDER 13 MATTHEW CATE, et al., 14 Defendants. 15 16 Plaintiff, a state prisoner proceeding pro se with a civil rights action, has requested 17 appointment of counsel. ECF No. 10. 18 The United States Supreme Court has ruled that district courts lack authority to require 19 counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 20 U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the 21 voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 22 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 23 The test for exceptional circumstances requires the court to evaluate the plaintiff’s 24 likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in 25 light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 26 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). 27 In support of this request, plaintiff states that because of the pandemic, he has limited 28 access to the prison law library and that when he does have access to it, it is impossible to wOASe GC LOU OENNS MVOC POI ee PAY ee 1 || practice social distancing. See ECF No. 10 at 1-2. He also points to health issues, a related 2 || pending surgery, and his indigence as grounds for appointment of counsel. See id. at 1-2. 3 || Plaintiff contends that these facts constitute the requisite exceptional circumstances. 4 Circumstances common to most prisoners, such as limited law library access and the 5 || inability to afford counsel, do not establish exceptional circumstances that would warrant a 6 || request for voluntary assistance of counsel. The court understands that the current pandemic has 7 | significantly affected all litigants’ ability to try their cases, and it is especially sensitive to the 8 || resulting limitations — both logistical and physical — that prisoner litigants are experiencing during 9 || this period. Consequently, plaintiff should rest assured that the court will take these factors into 10 | consideration in case management. For these reasons, the court does not find the required 11 || exceptional circumstances at this time. 12 Accordingly, IT IS HEREBY ORDERED that plaintiffs motion for the appointment of 13 | counsel, filed July 27, 2020 (ECF No. 10), is DENIED. 14 | DATED: July 29, 2020 ~ 19 ththien— Chane ALLISON CLAIRE 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28