(PC) Pack v. Padmesh ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARVIN PACK, JR., No. 2:18-cv-2944 KJM AC P 12 Plaintiff, 13 v. ORDER 14 JOE A. LIZARRAGA, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se with a civil rights action, has requested 18 appointment of counsel. ECF No. 54. 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 to assist in pre-settlement conference negotiations on the 4 || grounds that he is indigent, has limited access to the law library, is limited in his ability to litigate 5 || due to his imprisonment, is untrained in the law, and will require assistance if this case proceeds 6 || to trial. ECF No. 54. To the extent plaintiff is requesting counsel to assist him at a settlement 7 || conference as part of the Post-Screening ADR Project, defendants requested to opt out of the 8 | program, ECF No. 51, and their request was granted, ECF No. 53. Asa result, plaintiff's request 9 || for assistance is moot. To the extent plaintiffs request is a more general request for counsel, he 10 || fails to demonstrate the necessary exceptional circumstances because the conditions plaintiff 11 || alleges are common to most prisoners. Additionally, any request for counsel based upon the need 12 | for counsel at trial is premature because it has not yet been determined that this case will proceed 13 || to trial. 14 Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for the appointment of 15 || counsel, ECF No. 54, is denied. 16 | DATED: July 27, 2021 ~ 17 _Athuer—Clore ALLISON CLAIRE 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28