Dixon v. Kroenlein

Filing 28

ORDER signed by Magistrate Judge Allison Claire on 9/28/2017 DENYING without prejudice 27 Motion to Appoint Counsel. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BRUCE M. DIXON,

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No. 2:15-cv-1039 AC P

Plaintiff,
v.

ORDER

M. KROENLEIN, et al.,
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. ECF No. 27. 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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“When determining whether ‘exceptional circumstances’ exist, a court must consider ‘the

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likelihood of success on the merits as well as the ability of the [plaintiff] to articulate his claims

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pro se in light of the complexity of the legal issues involved.’” Palmer v. Valdez, 560 F.3d 965,

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970 (9th Cir. 2009) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). The burden

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of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common to
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most prisoners, such as lack of legal education and limited law library access, do not establish

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exceptional circumstances that would warrant a request for voluntary assistance of counsel.

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Plaintiff asserts that he requires assistance of counsel because he is a mental health patient

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and requires a staff assistant during disciplinary hearings and classification committee meetings.

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ECF No. 27 at 1. He further claims that he has limited access to the law library, that the inmate

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that was assisting him has been paroled, and there are no “jail lawyers” willing to assist him with

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his case. Id. The issues identified by plaintiff are circumstances experienced by most prisoners

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and are therefore not exceptional. With respect to his mental health claims, plaintiff has not

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shown that his mental health status impairs him such that he is incapable of proceeding without

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assistance of counsel. Up to this point he has shown that he is capable of articulating and

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defending his claims without assistance and there is currently nothing to be done in this case until

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defendants have been served and responded to the complaint.

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

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counsel (ECF No. 27) is denied without prejudice.

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DATED: September 28, 2017

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