(PC) Saldana v. Spearman ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SAMUEL SALDANA, No. 2:18-cv-0319 AC P 12 Plaintiff, 13 v. ORDER 14 M.E. SPEARMAN, et al., 15 Defendants. 16 17 Plaintiff has requested the appointment of counsel. ECF No. 32. The United States 18 Supreme Court has ruled that district courts lack authority to require counsel to represent indigent 19 prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In 20 certain exceptional circumstances, the district court may request the voluntary assistance of 21 counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 22 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 23 “When determining whether ‘exceptional circumstances’ exist, a court must consider ‘the 24 likelihood of success on the merits as well as the ability of the [plaintiff] to articulate his claims 25 pro se in light of the complexity of the legal issues involved.’” Palmer v. Valdez, 560 F.3d 965, 26 970 (9th Cir. 2009) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). The burden 27 of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common to 28 most prisoners, such as lack of legal education and limited law library access, do not establish 1 || exceptional circumstances that would warrant a request for voluntary assistance of counsel. 2 Plaintiff requests counsel on the grounds that he is indigent and his incarceration will 3 || greatly limit his ability to litigate. ECF No. 32. He also asserts that an attorney would be better 4 | able to present evidence and cross-examine witnesses. Id. These circumstances are common to 5 || most prisoners and are therefore not exceptional. Furthermore, it has not yet been determined that 6 || this case will proceed to trial, so any requests for counsel based on the need for representation at 7 || trial are premature. 8 Accordingly, IT IS HEREBY ORDERED that plaintiff’ s request for the appointment of 9 | counsel (ECF No. 32) is denied. 10 | DATED: December 16, 2019 ~ u Chthien—Chare ALLISON CLAIRE 12 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28