(PC) Hamilton v. Ables ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID HAMILTON, No. 2:23-cv-0050 DB P 12 Plaintiff, 13 v. ORDER 14 L. ABLES, et al., 15 Defendants. 16 17 Plaintiff is a state inmate proceeding pro se with a civil rights action pursuant to 42 U.S.C. 18 § 1983. Plaintiff claims defendants used excessive force against him in violation of his Eighth 19 Amendment rights. Presently before the court is plaintiff’s motion to appoint counsel. (ECF No. 20 11.) 21 In support of the motion plaintiff argues that: (1) the complaint presents a colorable 22 Eighth Amendment claims with a likelihood of success on the merits; (2) litigating this case will 23 require depositions, hearings, and witness testimony; (3) he is indigent and cannot afford counsel; 24 (4) he is blind in one eye, hearing impaired, receives mental health treatment; (5) the litigation 25 coordinator refused to accept service1 and the attorney general has not responded to a letter 26 regarding discovery requests. (ECF No. 11 at 1-2.) 27 1 The court notes that plaintiff filed the instant motion before service of the complaint was 28 ordered on December 19, 2023. 1 The United States Supreme Court has ruled that district courts lack authority to require 2 | counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 3 | US. 296, 298 (1989). In certain exceptional circumstances, the district court may request the 4 | voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 5 | 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 6 The test for exceptional circumstances requires the court to evaluate the plaintiff's 7 | likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in 8 | light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 9 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances 10 | common to most prisoners, such as lack of legal education and limited law library access, do not 11 | establish exceptional circumstances that would warrant a request for voluntary assistance of 12 | counsel. 13 In the present case, the court does not find the required exceptional circumstances. 14 | Plaintiffs arguments show nothing more than circumstances common to most inmates. 15 | Additionally, plaintiff’s filings in this action indicate that he is capable of articulating his claims 16 | in this action pro se. Thus, the undersigned will deny the motion without prejudice to its renewal 17 | ata later stage of the proceedings. 18 Accordingly, IT IS HEREBY ORDERED that plaintiffs request for the appointment of 19 | counsel (ECF No. 11) is denied. 20 | Dated: January 9, 2024 22 3 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28