Pimentel v. Beard et al

Filing 61

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 1/10/2018 DENYING plaintiff's 59 motion for the appointment of counsel and RECOMMENDING plaintiff's 60 motion to stay be denied. Referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RICARDO PIMENTEL,

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No. 2:14-cv-1192 MCE DB P

Plaintiff,
v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

BRETT MATHEW FLEMING,
Defendant.

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Plaintiff, a state prisoner proceeding pro se with a civil rights action, has requested

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appointment of counsel as he is incarcerated and has limited knowledge of the law. Plaintiff also

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requests a stay of these proceedings pending a decision on his motion for appointment of counsel.

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(ECF Nos. 59, 60.)

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

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

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light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328,

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1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). 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 would warrant a request for voluntary assistance of

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counsel. Here, plaintiff seeks appointment of counsel based on the difficulties he faces in

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conducting legal research because he is incarcerated and his limited knowledge of the law. These

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factors do not amount to the required exceptional circumstances.

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Because the court denies plaintiff’s motion for the appointment of counsel, the court will

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recommend plaintiff’s motion to stay this case be denied. However, the court is concerned about

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one statement plaintiff makes. In his motion for a stay, plaintiff states that a letter he wrote to an

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attorney and gave to a correctional officer during mail pick up was never in fact mailed. If

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plaintiff continues to experience interference with his legal mail involving this case, he may

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contact the court for assistance.
Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for the appointment of

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counsel (ECF No. 59) is denied; and
IT IS HEREBY RECOMMENDED that plaintiff’s motion to stay (ECF No. 60) be

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denied.
These findings and recommendations will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. The document should be captioned

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“Objections to Magistrate Judge's Findings and Recommendations.” Any response to the

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objections shall be filed and served within seven days after service of the objections. The parties

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are advised that failure to file objections within the specified time may result in waiver of the

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right to appeal the district court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: January 10, 2018

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DLB:9
DB/prisoner-civil rights/pime1192.31

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