(PC) Tunstall v. Alexander ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT WILLIAM TUNSTALL, JR, No. 2:21-cv-1701 TLN AC P 12 Plaintiff, 13 v. ORDER 14 M. ALEXANDER, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. 18 § 1983, has filed a response to the order denying his application to proceed in forma pauperis in 19 which he states that because his application has been denied, “[t]he court can provide Plaintiff 20 with a[n] Attorney.” ECF No. 11. The response will be construed as a motion to appoint 21 counsel. 22 The United States Supreme Court has ruled that district courts lack authority to require 23 counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 24 U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the 25 voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 26 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 27 “When determining whether ‘exceptional circumstances’ exist, a court must consider ‘the 28 likelihood of success on the merits as well as the ability of the [plaintiff] to articulate his claims 1 || pro se in light of the complexity of the legal issues involved.’” Palmer v. Valdez, 560 F.3d 965, 2 | 970 (9th Cir. 2009) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). The burden 3 || of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common to 4 || most prisoners, such as lack of legal education and limited law library access, do not establish 5 || exceptional circumstances that would warrant a request for voluntary assistance of counsel. 6 As an initial matter, plaintiff has been ordered to pay the filing fee and this case will not 7 || proceed unless and until the filing fee has been paid. Furthermore, the denial of in forma pauperis 8 || status! does not establish the necessary exceptional circumstances to warrant the appointment of 9 || counsel. 10 Accordingly, IT IS HEREBY ORDERED that plaintiffs request for the appointment of 11 | counsel, ECF No. 11, is denied. . 12 | DATED: November 19, 2021 Chthtten— Lan—e_ 13 ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 1 Plaintiff appears to believe that the court denied his application based on a misconception that 27 || he has sufficient funds. ECF No. 11. However, plaintiff is precluded from proceeding in forma pauperis, regardless of his ability to pay, due to accruing at least three strikes under 28 U.S.C. 28 | § 1915(g). See ECF Nos. 5, 9.