(PC) Witkin v. Wise ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL WITKIN, No. 2:19-cv-0974 KJM KJN P 12 Plaintiff, 13 v. ORDER 14 D. WISE, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding pro se, in an action brought under 42 U.S.C. 18 § 1983. Plaintiff requests that the court appoint counsel. District courts lack authority to require 19 counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist. 20 Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney 21 to 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 plaintiff’s 24 likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro 25 se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 26 (9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel). The 27 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 2 LD VOY OING IN RATIO Or POO OTe Ove 1 | establish exceptional circumstances that warrant a request for voluntary assistance of counsel. 2 Plaintiff allege that due to COVID-19, he is being denied access to the law library. 3 | Instead, plaintiff receives access to legal materials from the law library through the paging 4 | system. Plaintiff alleges that while the law library is closed, the gym, canteen and dayroom are 5 || open to inmates so long as they wear a mask. 6 Plaintiffs allegations regarding inadequate law library access do not warrant appointment 7 | of counsel. Plaintiff may request extensions of time if he is unable to meet legal deadlines due to 8 || inadequate access to legal materials. 9 Having considered the factors under Palmer, the court finds that plaintiff has failed to 10 | meet his burden of demonstrating exceptional circumstances warranting the appointment of 11 || counsel at this time. 12 Accordingly, IT IS HEREBY ORDERED that plaintiff's motion for the appointment of 13 | counsel (ECF No. 32) is denied without prejudice. 14 || Dated: June 8, 2020 is A Abar 16 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 17 18 | viaoszaat 19 20 21 22 23 24 25 26 27 28