(PC) Hernandez v. Barajas ( 2022 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 JUAN HERNANDEZ, No. 2:21-cv-0480 TLN DB P 11 Plaintiff, 12 v. ORDER 13 JOHN DOE #1, et al., 14 Defendants. 15 16 Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 17 U.S.C. § 1983. Plaintiff claims that defendants violated his Eighth Amendment rights. Presently 18 before the court is plaintiff’s motion for the appointment of counsel. (ECF No. 21.) 19 In support of his motion plaintiff argues the court should appoint counsel because he is 20 unable to afford counsel, his imprisonment will limit his ability to litigate, he has limited law 21 library access and knowledge of the law, counsel would be able to assist plaintiff in cross 22 examining witnesses, and he has made efforts to obtain counsel. (Id. at 1-2.) 23 The United States Supreme Court has ruled that district courts lack authority to require 24 counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 25 U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the 26 voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 27 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 28 //// 1 The test for exceptional circumstances requires the court to evaluate the plaintiffs 2 | likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in 3 || light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 4 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances 5 || common to most prisoners, such as lack of legal education and limited law library access, do not 6 || establish exceptional circumstances that would warrant a request for voluntary assistance of 7 | counsel. 8 In the present case, the court does not find the required exceptional circumstances. 9 | Plaintiff appears able to articulate his claims pro se and at this stage of the proceedings, the court 10 || cannot determine the likelihood of success on the merits. Thus, plaintiffs motion will be denied 11 | without prejudice to its renewal at a later stage of the proceedings. 12 Accordingly, IT IS HEREBY ORDERED that plaintiffs motion for the appointment of 13 || counsel (ECF No. 21) is denied. 14 || Dated: April 18, 2022 16 ‘BORAH BARNES UNITED STATES MAGISTRATE JUDGE 18 19 20 DB:12 21 || DB/DB Prisoner Inbox/Civil Rights/R/hern0480.31 22 23 24 25 26 27 28