(PC) Boone v. Ruby ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 NICKY BOONE, No. 2:20-cv-2100 WBS DB P 12 Plaintiff, 13 v. ORDER 14 RUBY, 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 and that the case be postponed until a lawyer is 19 representing plaintiff. 20 District courts lack authority to require counsel to represent indigent prisoners in section 21 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional 22 circumstances, the court may request an attorney to voluntarily represent such a plaintiff. See 28 23 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. 24 Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional 25 circumstances” exist, the court must consider plaintiff’s likelihood of success on the merits as 26 well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the 27 legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not 28 abuse discretion in declining to appoint counsel). The burden of demonstrating exceptional 1 circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such as lack of 2 | legal education and limited law library access, do not establish exceptional circumstances that 3 | warrant a request for voluntary assistance of counsel. 4 Having considered the factors under Palmer, the court finds that plaintiff has failed to 5 | meet his burden of demonstrating exceptional circumstances warranting the appointment of 6 | counsel at this time. 7 Accordingly, IT IS HEREBY ORDERED that plaintiff's motion for the appointment of 8 | counsel and for postponement of the case (ECF No. 51) is denied without prejudice. 9 | Dated: October 31, 2023 Mga?» 11 D ORAH BARNES DLBT UNITED STATES MAGISTRATE JUDGE boon2100.31.new 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28