(PC) Ben-Binyamin v. Benavidez ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ELI’EZER RE’UEL BEN-BINYAMIN, No. 2:18-cv-1015-KJM-EFB P 12 Plaintiff, 13 v. ORDER 14 J. BENAVIDEZ, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 18 U.S.C. § 1983. He requests that the court appoint him counsel and modify the discovery and 19 scheduling order so that appointed counsel can assist him with discovery. ECF No. 42. 20 District courts lack authority to require counsel to represent indigent prisoners in section 21 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional 22 circumstances, the court may request an attorney to voluntarily to represent such a plaintiff. See 23 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. 24 Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional 25 circumstances” exist, the court must consider the likelihood of success on the merits as well as the 26 ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues 27 involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Having considered those factors, 28 the court finds there are no exceptional circumstances in this case. In light of this denial, 6. LO UV VM EVES ING I MUO PIR VOI eo AY eT 1 | plaintiff’s motion to modify the discovery and scheduling order, which is premised on counsel 2 || being appointed for plaintiff, is denied as moot. 3 Accordingly, IT IS ORDERED that plaintiff’s request for appointment of counsel and to 4 || modify the discovery and scheduling order (ECF No. 42) is DENIED without prejudice. 5 | DATED: August 31, 2020. ° tid, PDEA 7 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28