(PC)Wilson v. Ortega ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ELROYAL JEROME WILSON, No. 2:21-cv-0314 KJM AC P 12 Plaintiff, 13 v. ORDER 14 J. ORTEGA, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, has filed a third request for the appointment of 18 counsel. ECF No. 34. 19 The United States Supreme Court has ruled that district courts lack authority to require 20 counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 21 U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the 22 voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 23 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 24 “When determining whether ‘exceptional circumstances’ exist, a court must consider ‘the 25 likelihood of success on the merits as well as the ability of the [plaintiff] to articulate his claims 26 pro se in light of the complexity of the legal issues involved.’” Palmer v. Valdez, 560 F.3d 965, 27 970 (9th Cir. 2009) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). The burden 28 of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common to 1 | most prisoners, such as lack of legal education and limited law library access, do not establish 2 || exceptional circumstances that would warrant a request for voluntary assistance of counsel. 3 Plaintiff once again requests counsel based on his mental health conditions and states that 4 | he does not know what more he needs to do since he already provided his medical records. ECF 5 || No. 34. However, as plaintiff has been previously advised, the claim that he suffers from mental 6 || health conditions, without more, is not enough to establish exceptional circumstances warranting 7 || appointment of counsel. The medical records plaintiff previously provided verify that he suffers 8 | from mental health conditions and has been prescribed various medication, see ECF No. 26 at 2- 9 || 5, but they do not include information demonstrating that the conditions or medications prevent 10 | plaintiff from proceeding without assistance in this matter. If plaintiff chooses to file another 11 || motion for appointment of counsel, he should identify what conditions he suffers from, explain 12 || how his conditions prevent him from proceeding without assistance, and provide medical 13 || documentation that supports his claims regarding the effect his mental health conditions have on 14 | his ability to proceed without assistance. 15 Submitting additional documentation will not necessarily entitle plaintiff to the 16 || appointment of counsel. Many inmates (and non-incarcerated pro se parties) are able to 17 || adequately represent themselves despite mental health conditions. So far plaintiff has done so in 18 || this case. Counsel is only appointed where the court concludes that a case presents potentially 19 || meritorious issues that plaintiff is incapable of articulating on his own. See Palmer, 560 F.3d at 20 | 970. 21 Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for appointment of 22 || counsel (ECF No. 34) is DENIED. 23 || DATED: May 24, 2022 ~ 24 Chttt0n— Chane ALLISON CLAIRE 25 UNITED STATES MAGISTRATE JUDGE 26 27 28