(PC) Stewart v. Ponce ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DARRYL LEROY STEWART, No. 2:22-cv-00285-CKD 12 Plaintiff, 13 v. ORDER 14 S. PONCE, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se in an action brought under 42 U.S.C. § 1983. 18 Plaintiff requests that the court appoint counsel. District courts lack authority to require counsel 19 to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist. Court, 490 20 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney to 21 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 1 | establish exceptional circumstances that warrant a request for voluntary assistance of counsel. 2 Having considered the factors under Palmer, the court finds that plaintiff has failed to 3 || meet his burden of demonstrating exceptional circumstances warranting the appointment of 4 | counsel at this time. 5 Accordingly, IT IS HEREBY ORDERED that: 6 1. Plaintiffs motion for the appointment of counsel (ECF No. 36) is denied without 7 || prejudice. 8 2. The court sua sponte grants plaintiff an extension of time to file an opposition to 9 || defendants’ motion for summary judgment. Plaintiff shall file an opposition, or a statement of 10 || non-opposition, to the motion for summary judgment no later than February 1, 2024. 11 3. Failure to comply with this order will result in a recommendation that this action be 12 || dismissed pursuant to Federal Rule of Civil Procedure 41(b). 13 | Dated: December 28, 2023 / ae □□ / a Ly a 4 CAROLYN K DELANEY 15 UNITED STATES MAGISTRATE JUDGE 16 17 12 18 19 20 21 22 23 24 25 26 27 28