(PC) Wilhelm v. Aung ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 STEVE WILHELM, No. 2:22-cv-02323 DJC DB P 12 Plaintiff, 13 v. ORDER 14 SANDAR AUNG, 15 Defendant. 16 17 Plaintiff is a state inmate proceeding pro se with a civil rights action pursuant to 42 U.S.C. 18 § 1983. Plaintiff claims defendants used excessive force against him in violation of his Eighth 19 Amendment rights. Presently before the court is plaintiff’s motion to appoint counsel. (ECF No. 20 20.) 21 In support of the motion plaintiff argues that: (1) he is indigent and cannot afford counsel; 22 and (2) he is incarcerated. (ECF No. 20 at 1.) Further plaintiff asserts that “when a court issues 23 an order to show cause, counsel must be appointed for an indigent plaintiff who request counsel. 24 28 U.S.C. § 1915(e)(1).” (ECF No. 20 at 1.) 25 The United States Supreme Court has ruled that district courts lack authority to require 26 counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 27 U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the 28 //// 1 | voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 2 | 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 3 The test for exceptional circumstances requires the court to evaluate the plaintiff's 4 | likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in 5 | light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 6 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances 7 | common to most prisoners, such as lack of legal education and limited law library access, do not 8 | establish exceptional circumstances that would warrant a request for voluntary assistance of 9 | counsel. 10 In the present case, the court does not find the required exceptional circumstances. 11 | Plaintiffs arguments show nothing more than circumstances common to most inmates. Further 12 | as articulated above 28 U.S.C. § 1915(e)(1) states that the district court may request an attorney, 13 | not must as plaintiff asserts. Additionally, plaintiff’s filings in this action indicate that he is 14 | capable of articulating his claims in this action pro se. Thus, the undersigned will deny the 15 | motion without prejudice to its renewal at a later stage of the proceedings. 16 Accordingly, IT IS HEREBY ORDERED that plaintiffs request for the appointment of 17 | counsel (ECF No. 20) is denied. 18 | Dated: February 22, 2024 20 1 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 DB:12 27 || DB/DB Prisoner Inbox/Civil Rights/R/wilh.2323.31 28