(PC) Davis v. Burton ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 DON ANGELO DAVIS, No. 2:20-cv-1260 DB P 11 Plaintiff, 12 v. ORDER 13 ROBERT BURTON, Warden, 14 Defendant. 15 16 Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights 17 action pursuant to 42 U.S.C. § 1983. Plaintiff claims defendants violated his Eighth Amendment 18 rights. Presently before the court is plaintiff’s motion for the appointment of counsel. (ECF No. 19 16.) 20 In support of his motion, plaintiff alleges that he is incarcerated and unable to afford 21 counsel. (Id.) He requests that counsel be appointed to protect his interest. Plaintiff has 22 presented his motion on a form used to request counsel in California superior courts that cites to 23 California Rules of Court, rule 4.551(c)(2). Rule 4.551 of the California Rules of court provides 24 that, in habeas corpus proceedings, “[t]he court must issue an order to show cause if the petitioner 25 has made a prima facie showing that he or she is entitled to relief” if the court issues “an order to 26 show cause, the court must appoint counsel for any unrepresented petitioner who desires but 27 cannot afford counsel.” As this is not a habeas action proceeding in a California state court, this 28 rule is not applicable. 1 The United States Supreme Court has ruled that district courts lack authority to require 2 | counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 3 | US. 296, 298 (1989). In certain exceptional circumstances, the district court may request the 4 | voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 5 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 6 The test for exceptional circumstances requires the court to evaluate the plaintiff's 7 | likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in 8 | light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 9 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances 10 | common to most prisoners, such as lack of legal education and limited law library access, do not 11 | establish exceptional circumstances that would warrant a request for voluntary assistance of 12 | counsel. 13 In the present case, the court does not find the required exceptional circumstances. 14 | Plaintiffs sole argument appears to be his indigency, thus he has stated nothing more than 15 | circumstances common to most inmates. Thus, the court will deny plaintiffs motion to appoint 16 | counsel without prejudice. 17 Accordingly, IT IS HEREBY ORDERED that plaintiff's motion for the appointment of 18 | counsel (ECF No. 16) is denied. 19 | Dated: July 8, 2021 21 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 23 24 25 26 DB/DB Prisoner Inbox/Civil Rights/R/davil260.31 27 28