(PC) Choyce v. Oliveria ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BENJAMIN CHOYCE, No. 2:19-cv-1216 TLN DB P 12 Plaintiff, 13 v. ORDER 14 M. OLIVERIA, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se with this civil rights action, has requested the 18 appointment of an attorney or mediator for settlement purposes. (ECF No. 24.) This motion 19 follows the July 23, 2020, order staying this case and referring it to the post-screening ADR 20 project. The Court therefore construes plaintiff’s motion, in part, as a notice of his willingness to 21 participate in the ADR project. 22 Plaintiff also requests the appointment of counsel because he is housed at Atascadero 23 State Hospital where he is being treated for hearing voices, severe depression, and a major 24 learning disability. He claims that appointment is necessary because he is “heavily medicated and 25 at times unable to comprehend things.” 26 The United States Supreme Court has ruled that district courts lack authority to require 27 counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 28 U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the wOAOe 2.40 VV VEEL PRINCE MVOC OY POC Veer AYO ev 1 | voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 2 | 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 3 The test for exceptional circumstances requires the court to evaluate the plaintiff's 4 | likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in 5 | light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 6 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances 7 | common to most prisoners, such as lack of legal education and limited law library access, do not 8 || establish exceptional circumstances that would warrant a request for voluntary assistance of 9 | counsel. 10 In the present case, the Court does not find the required exceptional circumstances at this 11 time. While plaintiff contends that his ability to prosecute this action is hampered by his 12 | placement at Atascadero State Hospital for “hearing voices, severe depression, and [a] major 13 | learning disability,” plaintiff submits no documentary evidence in support of his motion. The 14 | Court is thus unable to ascertain the extent, if any, to which his mental health problems affect his 15 | ability to articulate his claims. 16 Accordingly, IT IS HEREBY ORDERED that plaintiff's motion for the appointment of 17 | counsel (ECF No. 24) is denied without prejudice to its renewal. 18 | Dated: September 23, 2020 20 1 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 22 3 □□□□□□□□□□□□□□□□□□□□□□□□□□□□ 24 25 26 27 28