Garcia v. Folks et al

Filing 85

ORDER signed by Magistrate Judge Deborah Barnes on 07/20/17 denying 84 Motion to Appoint Counsel and granting 83 Motion for Extension of time. Plaintiff shall place his opposition in the mail on or before 8/17/17. Any reply shall be filed and served in accordance with Local Rule 230(l). (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RAUL GARCIA,

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No. 2:14-cv-2378 JAM DB P
Plaintiff,

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v.

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F. FOLKS, et al.,

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ORDER

Defendants.

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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 and an extension of time to file an opposition to defendants’ summary

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judgment motion. The court finds good cause for the extension of time. Plaintiff’s request for

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counsel is addressed below.

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Plaintiff states that he requires the appointment of counsel because he lacks the money to

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hire counsel, he has limited law library access, he has little knowledge of the law, and the issues

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in this case are complex. (ECF No. 84.) The United States Supreme Court has ruled that district

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courts lack authority to require counsel to represent indigent prisoners in § 1983 cases. Mallard

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v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the

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district court may request the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1).

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

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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. In the present case, the court does not find the required exceptional circumstances.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for the appointment of counsel (ECF No. 84) is denied;

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2. Plaintiff’s motion for an extension of time (ECF No. 83) is granted; and

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3. Plaintiff shall place his opposition in the mail on or before August 17, 2017. Any reply

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shall be filed and served in accordance with Local Rule 230(l).

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DATED: July 20, 2017

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/s/ DEBORAH BARNES
UNITED STATES MAGISTRATE JUDGE

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DLB:9

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DLB1/prisoner-civil rights/garc2378.31+36opp

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