(PC) Johnson v. Beard ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PAUL DAVID JOHNSON, No. 2:15-cv-01313-TLN-KJN 12 Plaintiff, 13 v. ORDER 14 J.A. BEARD, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se in an action brought under 42 U.S.C. § 1983. 18 Plaintiff requests that the Court appoint counsel. District courts lack authority to require counsel 19 to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist. Court, 490 20 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney to 21 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 the 24 plaintiff’s likelihood of success on the merits as well as the ability of the plaintiff to articulate his 25 claims pro se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 26 965, 970 (9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel). 27 The burden of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances 28 common to most prisoners, such as lack of legal education and limited law library access, do not 1 | establish exceptional circumstances that warrant a request for voluntary assistance of counsel. 2 Having considered the factors under Palmer, the Court finds that Plaintiff failed to meet 3 | his burden of demonstrating exceptional circumstances warranting the appointment of counsel at 4 | this time. 5 Plaintiff also filed a motion for extension of time to file objections to the findings and 6 || recommendations filed on August 9, 2021. The extension of time was handed to prison staff for 7 | mailing on September 29, 2021. The Court did not receive the request until October 4, 2021, and 8 | the District Court adopted the findings and recommendations on October 13, 2021. Because 9 | Plaintiff's motion for extension of time was timely filed, the October 13, 2021 order is vacated, 10 | and Plaintiff is granted thirty days from the date of this order in which to file objections. 11 Accordingly, IT IS HEREBY ORDERED that: 12 1. Plaintiffs motion for the appointment of counsel (ECF No. 165) is denied without 13 | prejudice; 14 2. The October 13, 2021 order (ECF No. 166) is vacated; 15 3. Plaintiff's motion for an extension of time (ECF No. 165) is granted; and 16 4. Plaintiff is granted thirty days from the date of this order in which to file objections to 17 || the August 9, 2021 findings and recommendations. 18 | Date: October 19, 2021 19 /) 20 “ \/ hha 22 United States District Judge 23 24 25 26 27 28