(PC) Bouie v. Smith ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DIRK JA’ONG BOUIE, JR., No. 2:18-cv-2040 KJM AC P 12 Plaintiff, 13 v. ORDER 14 OSCAR SMITH, 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 ee II III III IEE IIE ISIN IE IEEE IEE RESIS 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 case has some chance of success on the 4 | merits, he suffers from visual impairment, he receives mental health care, the issues in his case 5 || are complex, and he will require assistance at trial and with witnesses and investigation. ECF No. 6 || 30 at 3-6. The conditions plaintiff complains of are common to most prisoners and therefore fail 7 || to establish the necessary extraordinary circumstances to warrant appointment of counsel. 8 | Plaintiff has also, up to this point, demonstrated the ability to articulate his claims without 9 | assistance. Furthermore, to the extent plaintiff bases his request on a need for counsel at trial, the 10 || request is premature because it has not yet been determined that this case will proceed to trial, and 11 | although plaintiff has sufficiently stated a claim to make it past the screening stage, the court is 12 | unable to assess his likelihood of success at this early stage. Finally, the fact that plaintiff suffers 13 | from mental health conditions is not enough to establish exceptional circumstances warranting 14 | appointment of counsel. If plaintiff chooses to file another motion for appointment of counsel, he 15 || should identify what conditions he suffers from, explain how his conditions prevent him from 16 || proceeding without assistance, and provide medical documentation supporting his claimed 17 || impairments and their effect on his functioning. 18 Accordingly, IT IS HEREBY ORDERED that plaintiffs motion for the appointment of 19 || counsel, ECF No. 30, is DENIED. 20 || DATED: February 2, 2021 Ad 2 (A /, 21 ALLISON CLAIRE 0 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28