(PC) Kahaku v. Wallace ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DANIEL KAHAKU, No. 2:20-cv-1807 KJN P 12 Plaintiff, 13 v. ORDER 14 K. WALLANCE, 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. As set forth below, plaintiff’s motion is 19 denied. 20 Plaintiff’s Complaint 21 Plaintiff alleges that defendants K. Wallace, A. Bustamante, T. Freitas, J. Vina, E. Speer, 22 J. Canela, N. Hang, and G. Ellis conspired to retaliate against plaintiff by conducting multiple 23 retaliatory cell searches because plaintiff filed lawsuits in which plaintiff received monetary 24 settlements. (ECF No. 8.) 25 Governing Standards 26 District courts lack authority to require counsel to represent indigent prisoners in section 27 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional 28 circumstances, the court may request an attorney to voluntarily represent such a plaintiff. See 28 1 U.S.C. § 1915(e)1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. 2 | Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional 3 || circumstances” exist, the court must consider plaintiffs likelihood of success on the merits as 4 || well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the 5 || legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not 6 || abuse discretion in declining to appoint counsel). The burden of demonstrating exceptional 7 || circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such as lack of 8 | legal education and limited law library access, do not establish exceptional circumstances that 9 || warrant a request for voluntary assistance of counsel. 10 | Discussion 11 This action proceeds on plaintiffs well-plead original complaint. Plaintiff able to 12 || articulate his claims, and successfully settled prior civil rights cases without benefit of counsel. 13 | Plaintiff has propounded voluminous discovery requests. (ECF No. 24 at 2.) Under the current 14 || scheduling order, discovery closes on July 16, 2021, and as plaintiff points out, details concerning 15 || the August 9, 2019 cell search will largely turn on the credibility of the parties. Thus, at this time, 16 || the undersigned is unable to find that plaintiff is likely to succeed on the merits of his claims. 17 || Having considered the factors under Palmer, the court finds that plaintiff failed to meet his burden 18 || of demonstrating exceptional circumstances warranting the appointment of counsel at this time. 19 Accordingly, IT IS HEREBY ORDERED that plaintiff's motion for the appointment of 20 || counsel (ECF No. 23) is denied without prejudice. 21 | Dated: June 25, 2021 2 Aectl Aharon 23 KENDALL J. NE Ibh/ew/kahal80731 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28