(PC) Foust v. Kuku-Ojo ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CARL FOUST, No. 2:16-cv-2731 WBS AC P 12 Plaintiff, 13 v. ORDER 14 O. KUKU-OJO, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se with a civil rights action, has once again 18 requested appointment of counsel. ECF No. 100. 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 on the grounds that he is disabled and mentally impaired, and 4 || cannot get help from staff at the law library. ECF No. 100 at 1-2. He further claims that 5 || defendant’s counsel is taking advantage of his mental disability. Id. at 1. As the court has 6 || advised plaintiff on several occasions, the fact that he is disabled, by itself, is not sufficient to 7 || demonstrate that extraordinary circumstances warranting the appointment of counsel exist, and he 8 || has not provided medical documentation supporting his claim. ECF Nos. 49, 52, 56, 99. 9 || Furthermore, plaintiff has not demonstrated that he has a likelihood of success on the merits such 10 || that appointment of counsel would be appropriate. A conclusory statement that he has a good 11 || case does not demonstrate a likelihood of success, and the current record does not support the 12 | finding of such a likelihood. Finally, the only task plaintiff has to complete at this time is to 13 || respond to defendant’s motion to dismiss. That motion is based on plaintiff’s failure to respond 14 || to discovery requests, as ordered, and plaintiffs previous filings demonstrate that he should be 15 || capable of responding without the assistance of counsel. Plaintiff currently has until January 2, 16 || 2020, to respond to the motion, and is cautioned that failure to respond will likely result in a 17 || recommendation that this action be dismissed. 18 Accordingly, IT IS HEREBY ORDERED that plaintiffs motion for the appointment of 19 | counsel (ECF No. 100) is denied. 20 | DATED: December 10, 2019 ~ 21 Chthien—Chare ALLISON CLAIRE 22 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28