(PC) Rials v. Lozano ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES ALEXANDER RIALS, No. 2:19-cv-2152 TLN CKD P 12 Plaintiff, 13 v. ORDER 14 J. LOZANO, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights 18 action filed pursuant to 42 U.S.C. § 1983. Plaintiff has requested the appointment of counsel. 19 District courts lack authority to require counsel to represent indigent prisoners in section 1983 20 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional 21 circumstances, the court may request an attorney to voluntarily represent such a plaintiff. See 28 22 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. 23 Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional 24 circumstances” exist, the court must consider plaintiff’s likelihood of success on the merits as 25 well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the 26 legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not 27 abuse discretion in declining to appoint counsel). The burden of demonstrating exceptional 28 circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such as lack of 1 | legal education and limited law library access, do not establish exceptional circumstances that 2 || warrant a request for voluntary assistance of counsel. 3 Having considered the factors under Palmer, the court finds that plaintiff has failed to 4 | meet his burden of demonstrating exceptional circumstances warranting the appointment of 5 || counsel at this time. 6 Additionally, plaintiff filed a motion for extension of time to file a reply to defendants’ 7 || answer to plaintiff's complaint. However, no reply is necessary as the court has not ordered one 8 | inthis case. See Fed. R. Civ. P. 7(a)(7) (stating that a reply to an answer is allowed only “if the 9 || court orders one.”). Therefore, the court denies plaintiff's motion for an extension of time as 10 || unnecessary. 11 Accordingly, IT IS HEREBY ORDERED that: 12 1. Plaintiff's request for the appointment of counsel (ECF No. 49) is denied without 13 || prejudice. 14 2. Plaintiff's motion for an extension of time (ECF No. 50) is denied as unnecessary. 15 || Dated: November 2, 2021 fi 20 } Kt | / , a he 16 CAROLYN K DELANEY 17 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 93 □□□□□□□□□□□□□□□□□□□□□□ 24 25 26 27 28