(PC) Kiger v. Johnson ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOHNATHAN HOWARD KIGER, No. 2:23-cv-1263 KJM DB P 12 Plaintiff, 13 v. ORDER 14 TRACY JOHNSON, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 18 U.S.C. § 1983. Plaintiff claims that defendants improperly handled his legal mail, deprived him 19 the right to access the court, failed to provide him with adequate medical treatment, and retaliated 20 against him in violation of his constitutional rights. Presently before the court is plaintiff’s 21 motion for an extension of time to file an amended complaint (ECF No. 10) and motion to 22 appoint counsel (ECF No. 11). 23 I. Motion for an Extension of Time 24 Plaintiff seeks an additional sixty days to file an amended complaint. (ECF No. 10.) In 25 support of the request, he cites mail delays, limited access to the law library, and the failure to 26 prison officials to respond to his request for information. Good cause appearing, the court will 27 grant the motion. 28 //// 1 II. Motion to Appoint Counsel 2 Plaintiff has also moved for the appointment of counsel. (ECF No. 11.) Therein he states, 3 he is unable to afford counsel, his imprisonment prevents him from obtaining information 4 required to identify defendants in the amended complaint, the issues involved in the case are 5 complex requiring significant research and investigation, he has limited knowledge of the law, 6 trial will involve conflicting testimony and counsel would ensure he receives a fair trial. (Id. at 1- 7 2.) 8 The United States Supreme Court has ruled that district courts lack authority to require 9 counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 10 U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the 11 voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 12 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 13 The test for exceptional circumstances requires the court to evaluate the plaintiff’s 14 likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in 15 light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 16 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances 17 common to most prisoners, such as lack of legal education and limited law library access, do not 18 establish exceptional circumstances that would warrant a request for voluntary assistance of 19 counsel. 20 In the present case, the court does not find the required exceptional circumstances. 21 Plaintiff has cited nothing more than circumstances common to most inmates and are insufficient 22 to warrant the appointment of counsel. The court notes that plaintiff states prison officials have 23 not responded to his requests for information. However, he has not indicated when he submitted 24 a request for information. To the extent prison officials refuse to respond to his requests or 25 indicate they cannot provide the requested information, plaintiff may file a renewed request for 26 assistance in obtaining the necessary information. Accordingly, the motion to appoint counsel 27 will be denied without prejudice to its renewal at a later stage of the proceedings. 28 //// 1 I. Conclusion 2 Accordingly, IT IS HEREBY ORDERED that: 3 1. Plaintiff's motion for an extension of time (ECF No. 10) is granted; 4 2. Plaintiff shall file an amended complaint within sixty days of the date of service of this 5 order; and 6 3. Plaintiffs motion for the appointment of counsel (ECF No. 11) is denied without 7 prejudice. 8 || Dated: December 5, 2023 9 10 ll ORAH BARNES UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 DB/DB Prisoner Inbox/Civil Rights/R/kige1263.eot+31 17 18 19 20 21 22 23 24 25 26 27 28