Diaz v. Martel et al

Filing 35

ORDER signed by Magistrate Judge Kendall J. Newman on 5/13/13 denying 34 Motion to Appoint Counsel. (Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RANDOLPH DIAZ,
Plaintiff,

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No. 2:10-cv-1388 MCE KJN P

vs.
M. MARTEL, et al.,
Defendants.

ORDER
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Plaintiff is a state prisoner proceeding without counsel in an action brought under

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42 U.S.C. § 1983. Plaintiff requests that the court appoint counsel. District courts lack authority

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to require counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States

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Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an

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attorney to voluntarily to represent such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v.

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Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36

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(9th Cir. 1990). When determining whether “exceptional circumstances” exist, the court must

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consider plaintiff’s likelihood of success on the merits as well as the ability of the plaintiff to

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articulate his claims pro se in light of the complexity of the legal issues involved. Palmer v.

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Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not abuse discretion in declining to

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appoint counsel). The burden of demonstrating exceptional circumstances is on the plaintiff. Id.
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Circumstances common to most prisoners, such as lack of legal education and limited law library

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access, do not establish exceptional circumstances that warrant a request for voluntary assistance

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of counsel.

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In the present case, pursuant to defendants’ motion to dismiss, the court has

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narrowed this action to one Eighth Amendment claim, for deliberate indifference to serious

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medical needs, against sole remaining defendant Hashimoto. All other defendants and claims

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have been dismissed. (See Dkt. Nos. 30, 31.) A Discovery and Scheduling Order was issued on

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February 25, 2013; discovery closes on June 7, 2013. (Dkt. No. 33.) Plaintiff states that he

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requires appointment of counsel because he is unable to afford an attorney; the issues in this case

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are becoming complex; and plaintiff has limited access to the law library, and limited knowledge

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of the law. The court finds that plaintiff has failed to demonstrate “exceptional circumstances,”

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beyond that faced by all prisoner-plaintiffs, to warrant appointment of counsel at this time. To

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date, plaintiff has been able to articulate his claims and arguments despite the complexity of the

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legal issues presented. Moreover, for the reasons stated in the undersigned’s findings and

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recommendations, plaintiff has not yet demonstrated a likelihood of success on the merits of his

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remaining claim.
Therefore, having considered the factors under Palmer, the court finds that

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plaintiff has failed to meet his burden of demonstrating exceptional circumstances warranting the

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appointment of counsel at this time.
Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for the

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appointment of counsel (Docket No. 34) is denied without prejudice.

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DATED: May 13, 2013

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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diaz1388.31

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