(PC) Perry v. Nelson ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 THOMAS EDWARD PERRY, No. 2:22-cv-2140 WBS AC P 12 Plaintiff, 13 v. ORDER 14 M. NELSON, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. 18 § 1983, has filed motions for in camera review and appointment of counsel. ECF No. 3, 4. 19 The motion for in camera review appears to seek an order compelling an unspecified 20 prison official to produce confidential information related to plaintiff’s disciplinary charge, which 21 is the basis for his complaint. ECF No. 3. It is unclear whether plaintiff is seeking the documents 22 be produced for the court’s inspection or his inspection. Id. In either case, the motion is 23 premature. Plaintiff is currently in the pleading stage,1 and it is therefore unnecessary for him to 24 produce evidence to support his allegations. To the extent he is seeking the documents be 25 provided to him, this case has not yet entered the discovery phase. 26 //// 27 28 1 Plaintiff’s complaint will be screened in due course. ] With respect to plaintiff's request for counsel, the United States Supreme Court has ruled 2 | that district courts lack authority to require counsel to represent indigent prisoners in § 1983 3 || cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain exceptional 4 | circumstances, the district court may request the voluntary assistance of counsel pursuant to 28 5 | U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. 6 || Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 7 “When determining whether ‘exceptional circumstances’ exist, a court must consider ‘the 8 | likelihood of success on the merits as well as the ability of the [plaintiff] to articulate his claims 9 || pro se in light of the complexity of the legal issues involved.’” Palmer v. Valdez, 560 F.3d 965, 10 | 970 (9th Cir. 2009) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). The burden 11 || of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common to 12 || most prisoners, such as lack of legal education and limited law library access, do not establish 13 || exceptional circumstances that would warrant a request for voluntary assistance of counsel. 14 Plaintiff seeks counsel on the grounds that he is indigent, his imprisonment will limit his 15 | ability to litigate, he has limited legal knowledge and law library access, and counsel would be 16 || better able to represent him at trial. ECF No. 4. These circumstances are common to most 17 || prisoners, and any request based on the need for counsel at trial is premature because it has not 18 || yet been determined that this case will proceed to trial. For these reasons, plaintiff has not shown 19 || the existence of extraordinary circumstances warranting the appointment of counsel. 20 Accordingly, IT IS HEREBY ORDERED that: 21 1. Plaintiff's motion for in camera review (ECF No. 3) is DENIED; and 22 2. Plaintiffs motion for appointment of counsel (ECF No. 4) is DENIED. 23 DATED: September 27, 2023 ~ 24 Attlien— ALLISON CLAIRE 25 UNITED STATES MAGISTRATE JUDGE 26 27 28