(PC) Tate v. Chavez ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LIONEL TATE, SR., No. 2:22-cv-0211 DJC CKD P 12 Plaintiff, 13 v. ORDER 14 L. CHAVEZ, 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 for an interlocutory appeal. District courts lack 19 authority to require counsel to represent indigent prisoners in section 1983 cases. Mallard v. 20 United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may 21 request an attorney to voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell 22 v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 23 (9th Cir. 1990). When determining whether “exceptional circumstances” exist, the court must 24 consider plaintiff’s likelihood of success on the merits as well as the ability of the plaintiff to 25 articulate his claims pro se in light of the complexity of the legal issues involved. Palmer v. 26 Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not abuse discretion in declining to 27 appoint counsel). The burden of demonstrating exceptional circumstances is on the plaintiff. Id. 28 Circumstances common to most prisoners, such as lack of legal education and limited law library 1 | access, do not establish exceptional circumstances that warrant a request for voluntary assistance 2 | of counsel. 3 Having considered the factors under Palmer, the court finds that plaintiff has failed to 4 | meet his burden of demonstrating exceptional circumstances warranting the appointment of 5 || counsel on appeal. 6 Accordingly, IT IS HEREBY ORDERED that plaintiff's motion for the appointment of 7 || counsel for an interlocutory appeal (ECF No. 35) is denied. 8 | Dated: June 12, 2023 / hice ANKE) flo ° CAROLYN K DELANEY? 10 UNITED STATES MAGISTRATE JUDGE 1] 12 13 14 tate021 1.mfc 15 16 17 18 19 20 21 22 23 24 25 26 27 28