(PC) Merino v. Gomez ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FRANCISCO MERINO, No. 2:21-cv-0572 TLN KJN P 12 Plaintiff, 13 v. ORDER 14 GOMEZ, 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. Pending before the court are three motions for appointment of counsel filed by plaintiff. 19 (ECF Nos. 104, 109, 110.) 20 District courts lack authority to require counsel to represent indigent prisoners in section 21 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional 22 circumstances, the court may request an attorney to voluntarily represent such a plaintiff. See 28 23 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. 24 Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional 25 circumstances” exist, the court must consider plaintiff’s likelihood of success on the merits as 26 well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the 27 legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not 28 abuse discretion in declining to appoint counsel). The burden of demonstrating exceptional 1 | circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such as lack of 2 || legal education and limited law library access, do not establish exceptional circumstances that 3 || warrant a request for voluntary assistance of counsel. 4 Having considered the factors under Palmer, the court finds that plaintiff failed to meet his 5 || burden of demonstrating exceptional circumstances warranting the appointment of counsel at this 6 || time. 7 In one of the pending motions, plaintiff requests appointment of counsel because this 8 || action is reaching the point where it appears that it will actually go to trial. (ECF No. 109 at 1.) 9 | Plaintiff is informed that the dispositive motion deadline is December 2, 2022. (ECF No. 83.) 10 || The court will schedule a jury trial following resolution of any dispositive motions, if appropriate. 11 | Ifthis action goes to trial, the court will consider appointing counsel to represent plaintiff at trial. 12 Accordingly, IT IS HEREBY ORDERED that plaintiff's motions for the appointment of 13 || counsel (ECF Nos. 104, 109, 110) are denied without prejudice. 14 || Dated: September 6, 2022 Aectl Aharon 16 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 17 |) meri0572.31() 18 19 20 21 22 23 24 25 26 27 28