Baker v. Macomber et al

Filing 18

ORDER signed by Magistrate Judge Allison Claire on 10/09/15 denying 13 Motion to Appoint Counsel. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TIMOTHY RAY BAKER,

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Plaintiff,

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v.

No. 2:15-cv-0248 GEB AC P

ORDER

J. MACOMBER, et al.,

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Defendants.

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Plaintiff, a state prisoner proceeding pro se with a civil rights action, requests appointment
of counsel.
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. The burden of demonstrating exceptional circumstances is on the plaintiff. Palmer v.

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Valdez, 560 F.3d 965, 970 (9th Cir. 2009).

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In the present case, plaintiff seeks appointment of counsel on the grounds that he has

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serious mental health disabilities and low educational scores, and relies on the assistance of other

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prisoners in the preparation of his legal documents. Plaintiff also avers that the excessive force

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complained of in this action caused him permanent numbness and disability in his left shoulder,

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requiring the testimony of a medical expert to adequately support his claim. See ECF No. 13.

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Plaintiff also asserts that appointment of counsel is necessary “to ensure [] balanced pretrial

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conference proceedings and trial[.]” Id. at 1.

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Plaintiff has submitted no documentation to substantiate his alleged educational, mental

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health, and physical impairments. Moreover, it is premature to anticipate trial and pretrial

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proceedings. Significantly, this action has been narrowed to one claim, against one defendant.

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Plaintiff’s pleading was sufficient to establish a cognizable excessive force claim against

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defendant McCowan, indicating that plaintiff (with or without the assistance of other inmates)

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was able to articulate his claims pro se in light of the complexity of the legal issues involved.

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Plaintiff appears capable of identifying evidence essential to his claim, and formulating his

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discovery requests accordingly.1 For these reasons, the court finds that plaintiff has not met his

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burden of demonstrating exceptional circumstances warranting the appointment of counsel at this

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time.

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

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counsel, ECF No. 13, is denied without prejudice.

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DATED: October 9, 2015

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Plaintiff’s discovery requests may include the following: (1) requests for admission (yes-or-no
statements of fact) directed to each defendant, see Fed. R. Civ. P. 36; (2) up to twenty-five
interrogatories (questions) directed to each defendant, see Fed. R. Civ. P. 33; and (3) requests for
copies of documents, electronically stored information, or other tangible evidence directed to
each defendant, see Fed. R. Civ. P. 34.
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