(PC) Steward v. Newman ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DONNY STEWARD, No. 2:20-cv-2069 TLN AC P 12 Plaintiff, 13 v. ORDER 14 KENDALL J. NEWMAN, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se with this civil rights action, requests 18 appointment of counsel. 19 The Supreme Court has ruled that district courts lack authority to require counsel to 20 represent indigent prisoners in Section 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 21 296, 298 (1989). In certain exceptional circumstances, a court may request that an attorney 22 voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 23 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 24 When determining whether “exceptional circumstances” exist, the court must consider plaintiff’s 25 likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro 26 se in light of the complexity of the legal issues involved. See Palmer v. Valdez, 560 F.3d 965, 27 970 (9th Cir. 2009). The burden of demonstrating exceptional circumstances is on plaintiff. 28 Circumstances common to most prisoners, such as indigency, lack of legal education and limited 1 | law library access, do not establish exceptional circumstances warranting the appointment of 2 | voluntary counsel. Id. 3 The undersigned has already issued findings and recommendations in this case, 4 | recommending dismissal without leave to amend because the complaint fails to state a claim, 5 || seeks monetary relief from immune defendants, and is both factually and legally frivolous. See 6 || ECF No. 8. For the same reasons, plaintiff is unable to demonstrate exceptional circumstances 7 || warranting the appointment of counsel in this case. 8 Accordingly, IT IS HEREBY ORDERED that plaintiffs motion for appointment of 9 | counsel, ECF No. 11, is DENIED. 10 | DATED: November 24, 2020 ~ 1 Chttten—Clare ALLISON CLAIRE 12 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28