Scherffius v. Smith et al

Filing 45

ORDER signed by Magistrate Judge Deborah Barnes on 06/15/17 granting 43 Motion for Extension of time. The deadline for filing pre-trial motions is extended through 8/02/17. Plaintiff's motion for appointment of counsel 44 is denied without prejudice. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL E. SCHERFFIUS,

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No. 2:13-cv-1277 DB P

Plaintiff,
v.

ORDER

CHRISTOPHER SMITH, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action under

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42 U.S.C. § 1983. Before the court are two motions. First, plaintiff requests an extension of the

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June 2, 2017 deadline for filing pretrial motions. Plaintiff states that he is unable to meet the June

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2 deadline because he “has been going through several surgeries in order to address [his] heart

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disease.” (ECF No. 43.) In his second motion, plaintiff requests the appointment of counsel.

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Plaintiff states that he requires counsel because he has insufficient knowledge of the rules and

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procedures necessary to conduct a trial.

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Plaintiff has demonstrated good cause for an extension of the pretrial motion deadline.

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That request will be granted. However, plaintiff has not shown that he requires the appointment

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of counsel.

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The United States Supreme Court has ruled that district courts lack authority to require
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 district court may request the

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

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1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). The

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test for exceptional circumstances requires the court to evaluate the plaintiff’s likelihood of

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success on the merits and the ability of the plaintiff to articulate his claims pro se in light of the

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complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th

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Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances common to

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

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

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No trial has been scheduled in this case. On June 2, defendants filed a motion for

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summary judgment. A trial in this matter will not be scheduled unless defendants’ summary

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judgment motion is denied, at least in part. Plaintiff has not, at this point, shown exceptional

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circumstances justifying the appointment of counsel. His motion will be denied without

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prejudice.

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Good cause appearing, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for an extension of time (ECF No. 43) is granted. The deadline for

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filing pre-trial motions is extended through August 2, 2017.
2. Plaintiff’s motion for appointment of counsel (ECF No. 44) is denied without

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prejudice.

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Dated: June 15, 2017

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DLB:9
DLB1/prisoner-civil rights/sche1277.36

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