Bruce v. Chaiken et al

Filing 115

ORDER signed by Magistrate Judge Kendall J. Newman on 8/20/2019 DENYING without prejudice plaintiff's 113 motion for the 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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VINCENT BRUCE,

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No. 2:15-cv-0960 TLN KJN P

Plaintiff,
v.

ORDER

SHAMA CHAIKEN, et al.,

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Defendants.

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Plaintiff is a state prisoner, proceeding pro se, in an action brought under 42 U.S.C.

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§ 1983. This action is set for trial before the Honorable Troy L. Nunley on February 10, 2020.

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Plaintiff requests that the court appoint counsel to represent him at trial and at a settlement

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conference.

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District courts lack authority to require counsel to represent indigent prisoners in section

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1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional

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circumstances, the court may request an attorney to voluntarily represent such a plaintiff. See 28

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U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v.

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Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional

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circumstances” exist, the court must consider plaintiff’s likelihood of success on the merits as

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well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the

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legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not
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abuse discretion in declining to appoint counsel). The burden of demonstrating exceptional

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circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such as lack of

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legal education and limited law library access, do not establish exceptional circumstances that

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warrant a request for voluntary assistance of counsel.

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Plaintiff requests appointment of counsel because he is not trained in the law and is not

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familiar with the Federal Rules of Evidence. Plaintiff’s lack of legal education is not an

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exceptional circumstance that warrants appointment of counsel.

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In this action, plaintiff alleges that defendants provided inadequate medical care in
violation of the Eighth Amendment and state law. The legal issues in this action are not

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particularly complex. Plaintiff has competently represented himself in this action. For these

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reasons, the undersigned finds that plaintiff has failed to meet his burden of demonstrating

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exceptional circumstances warranting the appointment of counsel at this time.

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

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counsel (ECF No. 113) is denied without prejudice.

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Dated: August 20, 2019

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bruc0960.31

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