Pimentel v. Beard et al
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)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
No. 2:14-cv-1192 MCE DB P
ORDER AND FINDINGS AND
BRETT MATHEW FLEMING,
Plaintiff, a state prisoner proceeding pro se with a civil rights action, has requested
appointment of counsel as he is incarcerated and has limited knowledge of the law. Plaintiff also
requests a stay of these proceedings pending a decision on his motion for appointment of counsel.
(ECF Nos. 59, 60.)
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
U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the
voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d
1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).
The test for exceptional circumstances requires the court to evaluate the plaintiff’s
likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in
light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328,
1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances
common to most prisoners, such as lack of legal education and limited law library access, do not
establish exceptional circumstances that would warrant a request for voluntary assistance of
counsel. Here, plaintiff seeks appointment of counsel based on the difficulties he faces in
conducting legal research because he is incarcerated and his limited knowledge of the law. These
factors do not amount to the required exceptional circumstances.
Because the court denies plaintiff’s motion for the appointment of counsel, the court will
recommend plaintiff’s motion to stay this case be denied. However, the court is concerned about
one statement plaintiff makes. In his motion for a stay, plaintiff states that a letter he wrote to an
attorney and gave to a correctional officer during mail pick up was never in fact mailed. If
plaintiff continues to experience interference with his legal mail involving this case, he may
contact the court for assistance.
Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for the appointment of
counsel (ECF No. 59) is denied; and
IT IS HEREBY RECOMMENDED that plaintiff’s motion to stay (ECF No. 60) be
These findings and recommendations will be submitted to the United States District Judge
assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
after being served with these findings and recommendations, any party may file written
objections with the court and serve a copy on all parties. The document should be captioned
“Objections to Magistrate Judge's Findings and Recommendations.” Any response to the
objections shall be filed and served within seven days after service of the objections. The parties
are advised that failure to file objections within the specified time may result in waiver of the
right to appeal the district court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
Dated: January 10, 2018
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