(PC) Payne v. Baser ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAVANCE PAYNE, No. 2: 20-cv-553 KJN P 12 Plaintiff, 13 v. ORDER 14 C. BASER, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 18 to 42 U.S.C. § 1983. On July 9, 2020, the undersigned denied plaintiff’s motion for appointment 19 of counsel. (ECF No. 22.) 20 Pending before the court is plaintiff’s August 10, 2020 “request for rehearing” of his 21 motion for appointment of counsel. (ECF No. 23.) The undersigned construes plaintiff’s request 22 for rehearing as a renewed request for appointment of counsel. For the reasons stated herein, 23 plaintiff’s renewed request is denied. 24 District courts lack authority to require counsel to represent indigent prisoners in section 25 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional 26 circumstances, the court may request an attorney to voluntarily represent such a plaintiff. See 28 27 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. 28 Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional MASS 2 EUV YUNG IN RAMU, i POC OPE Ter PY oe 1 | circumstances” exist, the court must consider plaintiff's likelihood of success on the merits as 2 | well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the 3 | legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not 4 | abuse discretion in declining to appoint counsel). The burden of demonstrating exceptional 5 | circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such as lack of 6 | legal education and limited law library access, do not establish exceptional circumstances that 7 | warrant a request for voluntary assistance of counsel. 8 In the pending motion, plaintiff alleges that his disabilities warrant appointment of 9 | counsel. Attached to the pending motion are documents indicating that has disabilities are related 10 | to hearing and learning. (ECF No. 23 at 9.) Plaintiff also attaches a document dated March 3, 11 | 2017, stating that his reading score is 1.4. (Id. at 10.) Another inmate assisted plaintiff in 12 || preparing the pending motion. (Id. at 4.) 13 This action is stayed and set for a settlement conference before Magistrate Judge Claire on 14 | October 5, 2020. Based on the status of this case, the undersigned finds that appointment of 15 || counsel is not warranted at this time. Plaintiff may renew his motion for appointment of counsel 16 | following the settlement conference, if appropriate. 17 Accordingly, IT IS HEREBY ORDERED that plaintiffs request for rehearing (ECF No. 18 | 23), construed as a renewed request for appointment of counsel, is denied. 19 | Dated: August 13, 2020 20 Aectl Aharon 2] KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 22 23 Pay553.req 24 25 26 27 28