(PC) Taylor v. Carbullido ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KENNETH LEE TAYLOR, No. 2:19-cv-2550 KJM CKD P 12 Plaintiff, 13 v. ORDER 14 J. CARBULLIDO, 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. District courts lack authority to require counsel 19 to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist. Court, 490 20 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney to 21 voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 22 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 23 When determining whether “exceptional circumstances” exist, the court must consider plaintiff’s 24 likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro 25 se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 26 (9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel). The 27 burden of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances 28 ///// 1 | common to most prisoners, such as lack of legal education and limited law library access, do not 2 || establish exceptional circumstances that warrant a request for voluntary assistance of counsel. 3 Having considered the factors under Palmer, the court finds that plaintiff has failed to 4 | meet his burden of demonstrating exceptional circumstances warranting the appointment of 5 || counsel at this time. 6 Also, plaintiff asks that discovery be reopened. Discovery closed last September. 7 || Because plaintiff fails to indicate why more discovery is necessary and fails to adequately explain 8 | his delay in seeking more discovery, his request will be denied. 9 Finally, the court notes that defendants’ motion for summary judgment is submitted to the 10 || court for decision. Plaintiff filed a sur-reply with respect to the motion and defendants have filed 11 || a motion to strike the sur-reply. With respect to motions, the Local Rules permit an opposition 12 | andareply. Local Rule 230(1). Sur-replies are generally not permitted, and plaintiff fails to point 13 || to any reason why he should have been permitted to file a sur-reply. Accordingly, the sur-reply 14 | will be stricken. 15 Accordingly, IT IS HEREBY ORDERED that: 16 1. Plaintiffs motion for the appointment of counsel (ECF No. 62) is denied. 17 2. Plaintiffs motion to reopen discovery (ECF No. 62) is denied. 18 3. Defendant’s motion to strike the sur-reply filed by plaintiff on February 24, 2023 (ECF 19 | No. 61) is granted. The sur-reply (ECF No. 60) is stricken. 20 | Dated: April 28, 2023 □□ I / dip Ze 21 CAROLYNK. DELANEY 22 UNITED STATES MAGISTRATE JUDGE 23 24 25 || ih tayl2550.31 new 26 27 28