(PC) Dudley v. Kohler ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CLYDE A. DUDLEY, II., No. 2:17-cv-2308 MCE AC P 12 Plaintiff, 13 v. ORDER 14 LORI KOHLER, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se with a civil rights action, has requested 18 appointment of counsel. 19 The United States Supreme Court has ruled that district courts lack authority to require 20 counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 21 U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the 22 voluntary assistance of counsel pursuant to 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, a court must consider ‘the 25 likelihood of success on the merits as well as the ability of the [plaintiff] to articulate his claims 26 pro se in light of the complexity of the legal issues involved.’” Palmer v. Valdez, 560 F.3d 965, 27 970 (9th Cir. 2009) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). The burden 28 of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common to 1 || most prisoners, such as lack of legal education and limited law library access, do not establish 2 || exceptional circumstances that would warrant a request for voluntary assistance of counsel. 3 Plaintiff requests counsel on the grounds that his imprisonment limits his ability to 4 | litigate, he has no physical access to the law library, the issues are complex, and he will require 5 || assistance at trial. ECF No. 21. The circumstances alleged by plaintiff are common to most 6 || prisoners and therefore do not establish the necessary exceptional circumstances. Furthermore, 7 | the court is unable to assess plaintiffs likelihood of success on the merits at this stage, and any 8 || request based on the need for counsel at trial is premature because it has yet to be determined 9 || whether this case will go to trial. 10 Accordingly, IT IS HEREBY ORDERED that plaintiffs motion for the appointment of 11 | counsel, ECF No. 21, is DENIED. 12 | DATED: February 3, 2021 ~ 13 Chthien—Chare ALLISON CLAIRE 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28