(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. Plaintiff has renewed his request that the court appoint counsel. District courts lack 19 authority to require counsel to represent indigent prisoners in section 1983 cases. Mallard v. 20 United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may 21 request an attorney to voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell 22 v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 23 (9th Cir. 1990). When determining whether “exceptional circumstances” exist, the court must 24 consider plaintiff’s likelihood of success on the merits as well as the ability of the plaintiff to 25 articulate his claims pro se in light of the complexity of the legal issues involved. Palmer v. 26 Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not abuse discretion in declining to 27 appoint counsel). The burden of demonstrating exceptional circumstances is on the plaintiff. Id. 28 Circumstances common to most prisoners, such as lack of legal education and limited law library wAIS 6 LY VEO SINE LENG IN RAUCOUS VO Ee AY ee 1 | access, do not establish exceptional circumstances that warrant a request for voluntary assistance 2 | of counsel. 3 On April 14, 2020, the undersigned recommended that defendant Dr. Borges’ motion for 4 | summary judgment be granted. While the undersigned appreciates the difficulties plaintiff faces 5 | in connection with the precautions being taken in light of the COVID-19 pandemic, the court has 6 | considered the factors under Palmer, and finds that plaintiff cannot meet his burden of 7 | demonstrating exceptional circumstances warranting the appointment of counsel at this time. 8 However, in an abundance of caution, plaintiff is granted another extension of time in 9 | which to file objections. 10 Accordingly, IT IS HEREBY ORDERED that: 11 1. Plaintiffs motion for the appointment of counsel (ECF No. 88) is denied without 12 | prejudice; and 13 2. Plaintiff is granted sixty days in which to file objections to the findings and 14 | recommendations. 15 | Dated: August 18, 2020 i Fensbl A Abar 17 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 18 /bivi0389.31(2) 19 20 21 22 23 24 25 26 27 28