(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 JAM 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. § 1983. 18 Plaintiff requests that the court appoint counsel. 19 District courts lack authority to require counsel to represent indigent prisoners in section 20 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional 21 circumstances, the court may request an attorney to voluntarily represent such a plaintiff. See 28 22 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. 23 Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional 24 circumstances” exist, the court must consider plaintiff’s likelihood of success on the merits as 25 well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the 26 legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not 27 abuse discretion in declining to appoint counsel). The burden of demonstrating exceptional 28 circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such as lack of 1 | legal education and limited law library access, do not establish exceptional circumstances that 2 || warrant a request for voluntary assistance of counsel. 3 Having considered the factors under Palmer, the court finds that plaintiff failed to meet his 4 | burden of demonstrating exceptional circumstances warranting the appointment of counsel at this 5 || time. 6 Accordingly, IT IS HEREBY ORDERED that plaintiff's motion for the appointment of 7 || counsel (ECF No. 65) is denied without prejudice. 8 | Dated: February 25, 2022 Foci) Aharon 10 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 1] 12 Mer572.31 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28