(PC)Hernandez v. Constable ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 CESAR N. HERNANDEZ, No. 2:19-cv-2195 MCE DB P 11 Plaintiff, 12 v. ORDER 13 A. CONSTABLE, et al., 14 Defendants. 15 16 Plaintiff, a state prisoner proceeding pro se with a civil rights action, has requested 17 appointment of counsel. Plaintiff states that he has a mental health disability and needs assistance 18 with discovery. 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 The test for exceptional circumstances requires the court to evaluate the plaintiff’s 25 likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in 26 light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 27 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances 28 common to most prisoners, such as lack of legal education and limited law library access, do not 1 | establish exceptional circumstances that would warrant a request for voluntary assistance of 2 | counsel. Inthe present case, plaintiff requests the help of counsel with discovery. However, the 3 | discovery deadline is long past. (See July 28, 2020 Discovery and Scheduling Order (setting 4 | discovery deadline of November 30, 2020).) This court finds no exceptional circumstances 5 | justifying the appointment of counsel at this time. 6 Accordingly, IT IS HEREBY ORDERED that plaintiffs motion for the appointment of 7 | counsel (ECF No. 68) is denied, without prejudice. 8 | Dated: August 4, 2021 Mlcand™>_ 10 ll ORAH BARNES UNITED STATES MAGISTRATE JUDGE 12 13 14 15 | DLB» DB prisoner inbox/civil rights/R/nern2195.31(2) 16 17 18 19 20 21 22 23 24 25 26 27 28