(PC) Harris v. Pleshchuck ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TEVIN LEE HARRIS, No. 2:19-cv-1751 JAM KJN P 12 Plaintiff, 13 v. ORDER 14 R. VALENCIA, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding pro se, in an action brought under 42 U.S.C. 18 § 1983. Plaintiff requests that the court appoint counsel. District courts lack authority to require 19 counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist. 20 Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney 21 to voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 22 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 23 When determining whether “exceptional circumstances” exist, the court must consider plaintiff’s 24 likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro 25 se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 26 (9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel). The 27 burden of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances 28 //// 1 | common to most prisoners, such as lack of legal education and limited law library access, do not 2 | establish exceptional circumstances that warrant a request for voluntary assistance of counsel. 3 Having considered the factors under Palmer, the court finds that plaintiff has failed to 4 | meet his burden of demonstrating exceptional circumstances warranting the appointment of 5 | counsel at this time. 6 The undersigned observes that this action is set for a settlement conference before 7 | Magistrate Judge Claire on May 13, 2021. (ECF No. 55.) Good cause appearing, the stay in this 8 | action is continued to May 13, 2021. Defendants are reminded of their continued obligation to 9 | provide plaintiff's relevant medical and mental health records to Magistrate Judge Claire for in 10 | camera review at the time they submit their confidential settlement conference statement. (See 11 ECF No. 37.) 12 Accordingly, IT IS HEREBY ORDERED that: 13 1. Plaintiff's motion for the appointment of counsel (ECF No. 53) is denied without 14 prejudice; 15 2. The stay in this action is continued to May 13, 2021; 16 3. Defendants shall provide plaintiff's relevant medical and mental health records to 17 Magistrate Judge Claire for in camera review at the time they submit their confidential 18 settlement conference statement. 19 | Dated: April 8, 2021 20 Aectl Aharon 2] KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 22 | harrl 75131 23 24 25 26 27 28