(PC) Garcia v. Herrera ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FRANCISCO GARCIA, No. 2:22-cv-1612 CKD P 12 Plaintiff, 13 v. ORDER 14 LINDA, 15 Defendant. 16 17 Plaintiff has filed a motion for extension of time to file an amended complaint. Good 18 cause appearing, the motion will be granted and the amended complaint filed by plaintiff on 19 December 23, 2022 will be deemed timely. 20 Plaintiff is a state prisoner proceeding pro se in an action brought under 42 U.S.C. § 1983. 21 Plaintiff requests that the court appoint counsel. District courts lack authority to require counsel 22 to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist. Court, 490 23 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney to 24 voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 25 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 26 When determining whether “exceptional circumstances” exist, the court must consider plaintiff’s 27 likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro 28 se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 1 |} (9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel). The 2 || burden of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances 3 || common to most prisoners, such as lack of legal education and limited law library access, do not 4 || establish exceptional circumstances that warrant a request for voluntary assistance of counsel. 5 Having considered the factors under Palmer, the court finds that plaintiff has failed to 6 || meet his burden of demonstrating exceptional circumstances warranting the appointment of 7 || counsel at this time. 8 Accordingly. IT IS HEREBY ORDERED that: 9 1. Plaintiffs motion for an extension of time (ECF No. 13) is granted; 10 2. Plaintiff's amended complaint filed December 23, 2022 is deemed timely; 11 3. Plaintiff's motion for the appointment of counsel (ECF No. 15) is denied. 12 | Dated: March 7, 2023 / a □□ / a Ly a 13 CAROLYN K DELANEY 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 | 1m garcl 612.36 18 19 20 21 22 23 24 25 26 27 28