(PC) Rood v. Lockwood ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 COLTON JAMES ROOD, No. 2:20-cv-0271 KJM AC P 12 Plaintiff, 13 v. ORDER 14 LOCKWOOD, et al., 15 Defendants. 16 17 Plaintiff has requested the appointment of counsel. ECF No. 47. The United States 18 Supreme Court has ruled that district courts lack authority to require counsel to represent indigent 19 prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In 20 certain exceptional circumstances, the district court may request the voluntary assistance of 21 counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 22 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 23 “When determining whether ‘exceptional circumstances’ exist, a court must consider ‘the 24 likelihood of success on the merits as well as the ability of the [plaintiff] to articulate his claims 25 pro se in light of the complexity of the legal issues involved.’” Palmer v. Valdez, 560 F.3d 965, 26 970 (9th Cir. 2009) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). The burden 27 of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common to 28 most prisoners, such as lack of legal education and limited law library access, do not establish 1 | exceptional circumstances that would warrant a request for voluntary assistance of counsel. 2 Plaintiff requests that the court either appoint counsel or distribute his case to the list of 3 || prospective pro bono attorneys maintained by the court. ECF No. 47 at 1. He states that he 4 || requires counsel because he is indigent, his imprisonment limits his ability to litigate this action, 5 || his access to the law library and legal knowledge are limited, counsel would be able to better 6 || present evidence and cross-examine witnesses, and he has been unable to obtain counsel on his 7 || own. Id. at 1-2. However, these circumstances are common to most prisoners and do not 8 | establish the necessary exceptional circumstances. To the extent the request is based upon the 9 || need for counsel at trial, it is premature. Finally, plaintiff alleges that staff have retaliated against 10 || him by denying him access to the law library, copies, and envelopes, but does not provide specific 11 | facts or evidence to support this claim. For these reasons, plaintiff has not shown the existence of 12 || extraordinary circumstances warranting the appointment of counsel. 13 Accordingly, IT IS HEREBY ORDERED that plaintiffs request for the appointment of 14 | counsel, ECF No. 47, is DENIED. 15 || DATED: March 1, 2022 * Ctt10 Lhar—e_ 16 ALLISONCLAIRE. SS 17 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28