Joseph v. Parciasepe, et al.

Filing 45

ORDER signed by Magistrate Judge Allison Claire on 8/2/2016 DENYING plaintiff's 44 motion for appointment of counsel.(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ALONZO JAMES JOSEPH,

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No. 2:14-cv-0414 GEB AC P

Plaintiff,
v.

ORDER

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T. PARCIASEPE, et al.,
Defendants.

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Plaintiff, a state prisoner proceeding pro se with a civil rights action, has requested
appointment of counsel. ECF No. 44.
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 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).

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“When determining whether ‘exceptional circumstances’ exist, a court must consider ‘the

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likelihood of success on the merits as well as the ability of the [plaintiff] to articulate his claims

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pro se in light of the complexity of the legal issues involved.’” Palmer v. Valdez, 560 F.3d 965,

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970 (9th Cir. 2009) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). The burden
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of demonstrating exceptional circumstances is on the plaintiff. Id. 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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Plaintiff’s request is based solely on his limited ability to access the law library. ECF No.

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44. While the court is sympathetic to plaintiff’s frustration at his limited law library access, it is

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not an exceptional circumstance. Moreover, if plaintiff requires additional time to meet a

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deadline because of his limited access, he can always file a motion for extra time explaining how

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much time he needs and why he needs the extra time. The court also finds that while it is unable

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to evaluate plaintiff’s likelihood of success on the merits at this time, plaintiff has shown himself

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to be capable of expressing his claims without assistance up to this point. For these reasons, the

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court does not find the required exceptional circumstances.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for the appointment of

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counsel (ECF No. 44) is denied.

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DATED: August 2, 2016

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