(PC) Felix v. Casey ( 2022 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 EDDIE FELIX, No. 2:18-cv-3185 KJM AC P 11 Plaintiff, 12 v. ORDER 13 JOHN CASEY, et al., 14 Defendants. 15 16 Plaintiff, a state prisoner proceeding pro se with a civil rights action, has requested 17 appointment of counsel and/or an extension of time to have counsel appointed to him off the 18 court’s pro bono attorney list. ECF No. 53 at 1-3.1 In support of the motion, plaintiff states in 19 part that he cannot “meet the demands” in defendant Casey’s reply to his opposition to defendant 20 Casey’s motion for summary judgment; that he is unable to afford counsel; that the prison law 21 library is antiquated; that he has no formal legal training, and that English is his second language. 22 Id. at 2. 23 The United States Supreme Court has ruled that district courts lack authority to require 24 counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 25 U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the 26 //// 27 1 Attached to the motion is an unauthorized surreply in opposition to defendant Casey’s motion 28 for summary judgment. ECF No. 53 at 4-9. 1 || voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 2 | 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 3 The test for exceptional circumstances requires the court to evaluate the plaintiff's 4 || likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in 5 || light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 6 | 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances 7 || common to most prisoners, such as lack of legal education and limited law library access, do not 8 | establish exceptional circumstances that would warrant a request for voluntary assistance of 9 || counsel. 10 Plaintiff has thus far satisfactorily managed his case without legal assistance, and he 11 || appears to have no difficulty communicating in writing in English. As for plaintiffs professed 12 || mability to “comply” with the “demands” in defendant Casey’s reply, that reply makes no 13 || demands of plaintiff. It is simply a response to plaintiff's opposition to defendant Casey’s motion 14 | for summary judgment. See generally ECF No. 49. Furthermore, plaintiff need not—and has no 15 || right to—file a response to defendant Casey’s reply. See Local Rule 230(m) (briefing of motions 16 || concludes with moving party’s reply). For all these reasons, the motion will be denied. 17 Accordingly, IT IS HEREBY ORDERED that plaintiffs motion for the appointment of 18 || counsel (ECF No. 53) is DENIED. 19 | DATED: August 18, 2022 ~ Cttt0 Lhar—e_ 20 ALLISONCLAIRE. 21 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28