Wilson v. Beard et al

Filing 64

ORDER signed by Magistrate Judge Allison Claire on 11/13/19 DENYING 57 Motion to Appoint Temporary Counsel and GRANTING 58 Motion for Extension for Extension of Time. Plaintiffs opposition to the sanctions motion, 59 , is now due January 8, 2020. In light of the generous amount of time provided, no additional extensions of time will be granted absent exigent circumstances. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JASPER F. WILSON,

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Plaintiff,

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No. 2:15-cv-1481 MCE AC P

v.

ORDER

JEFFREY A. BEARD, et al.,

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Defendants.

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Plaintiff, a state prisoner proceeding pro se and in forma pauperis, has filed this civil

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rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States

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Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
Before the court are plaintiff’s motions for the temporary appointment of counsel and for

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a sixty-day extension of time to file an opposition to defendants’ motion for sanctions. ECF Nos.

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57, 58. For the reasons stated below, the court will deny plaintiff’s motion for the temporary

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appointment of counsel, and it grant an extension of time to file an opposition to defendants’

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motion for sanctions.

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I.

PLAINTIFF’S MOTION TO APPOINT COUNSEL

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On November 1, 2019, plaintiff filed a motion for the temporary appointment of counsel.

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ECF No. 57. In support of the motion, plaintiff states: (1) he is unable to afford counsel; (2) his

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imprisonment will greatly limit his ability to litigate this action; (3) opposing defendants’ motion
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for sanctions will require significant research and investigation; (4) he has very limited access to

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the prison law library; (5) only temporary counsel may be able to establish the authenticity and/or

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lack thereof of proffered declarations and/or evidence of all parties; (6) appointed counsel would

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be better equipped to conduct a trial; and (7) appointed counsel could assist him with establishing

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the truth regarding his allegations that some witnesses have perjured themselves. See id. at 1-5.

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Defendants oppose plaintiff’s request. See ECF No. 61.

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

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This matter has been on the court’s docket since July 2015. See ECF No. 1. To date,

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plaintiff has managed to litigate it adequately without assistance from appointed counsel.

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Plaintiff readily admits this. See ECF No. 57 at 5 (plaintiff stating he is “competent enough to

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present his own case[] and has done so up and until the defendants’ notice of motion and motion

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for sanctions . . . was served.”). Moreover, the fact that this action has survived defendants’

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motion to dismiss (see ECF Nos. 20, 41, 45) further supports plaintiff’s ability to litigate this

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action satisfactorily, and it also indicates that success on the action’s merits is within the realm of

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possibilities. See generally Wilborn, 789 F.2d at 1331; Weygandt, 718 F.2d at 954. For these

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reasons, plaintiff’s motion for the appointment of temporary counsel will be denied.

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II.

PLAINTIFF’S MOTION FOR AN EXTENSION OF TIME

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On November 1, 2019, plaintiff also filed a motion for a sixty-day extension of time, up to

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and including January 8, 2020, to file an opposition to defendants’ motion for sanctions. See ECF

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No. 58 at 5. Defendants do not oppose this request. See ECF No. 60 at 3 n.2. The court will

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grant plaintiff’s motion for an extension of time.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for the temporary appointment of counsel, ECF No. 57, is DENIED;

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2. Plaintiff’s motion for an extension of time to file an opposition to defendants’ motion

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for sanctions, ECF No. 58, is GRANTED; and
3. Plaintiff’s opposition to the sanctions motion, ECF No. 59, is now due January 8,

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2020. In light of the generous amount of time provided, no additional extensions of time will be

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granted absent exigent circumstances.

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DATED: November 13, 2019

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