(PC) Davis v. Herrera et al

Filing 12

ORDER DENYING 11 Motion to Appoint Counsel signed by Magistrate Judge Gary S. Austin on 1/7/2025. (Deputy Clerk AML)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MALIK DAVIS,

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No. 1:24-cv-00896 GSA (PC)
Plaintiff,

ORDER DENYING PLAINTIFF’S MOTION
FOR THE APPOINTMENT OF COUNSEL

v.
JASMIN HERRERA, et al.,
Defendants.

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Plaintiff has requested the appointment of counsel. ECF No. 11. In support of the motion

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Plaintiff states that he cannot afford counsel, that his imprisonment will greatly limit his ability to

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litigate, and that a trial in this case will likely involve conflicting testimony. Id.

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The United States Supreme Court has ruled that district courts lack authority to require

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counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490

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U.S. 296, 298 (1989). In certain exceptional circumstances, the court may request the voluntary

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assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017

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(9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). In the present

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case, the court does not find the required exceptional circumstances. Plaintiff’s request for the

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appointment of counsel will therefore be denied.

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When determining whether “exceptional circumstances” exist, the court must consider
plaintiff’s likelihood of success on the merits as well as the ability of the plaintiff to articulate his
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claims pro se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d

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965, 970 (9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel).

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The burden of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances

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common to most prisoners, such as lack of legal education and limited law library access, do not

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establish exceptional circumstances that warrant a request for voluntary assistance of counsel.

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Plaintiff’s complaint raises three straightforward claims against three defendants:

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excessive force, failure to protect, and cruel and unusual punishment. See ECF No. 1 at 3-5. In

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addition, a review of the filings Plaintiff has done to date does not indicate that he any cognitive

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or mental health deficiencies that would prevent him from competently litigating this case. For

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these reasons, the Court finds that Plaintiff has failed to meet his burden of demonstrating

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exceptional circumstances warranting the appointment of counsel at this time.

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Accordingly, IT IS HEREBY ORDERED that Plaintiff’s request for the appointment of
counsel (ECF No. 11) is DENIED.

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IT IS SO ORDERED.
Dated:

January 7, 2025

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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