(PC) Saldana v. Spearman ( 2021 )

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 KJM 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. 71. 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 On October 13, 2021, the undersigned issued findings and recommendations which 3 || recommended denying defendant’s motion for summary judgment. ECF No. 69. The time for 4 || filing objections to the findings and recommendations has passed and the findings and 5 || recommendations are now pending review by the assigned district judge. Accordingly, there is 6 || currently nothing for plaintiff to do, and plaintiff has not shown the existence of extraordinary 7 || circumstances warranting the appointment of counsel at this time. In the event the district judge 8 | adopts the pending findings and recommendations and this case proceeds, plaintiff may renew his 9 || request for counsel at that time. 10 Accordingly, IT IS HEREBY ORDERED that plaintiffs request for the appointment of 11 || counsel, ECF No. 71, is DENIED without prejudice. 12 | DATED: November 10, 2021 13 Chthion— Chore ALLISON CLAIRE 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28