Shepherd v. California Forensic Medical Group et al

Filing 40

ORDER signed by Magistrate Judge Kendall J. Newman on 08/08/17 denying 35 Motion to Appoint Counsel. Plaintiff's pretrial statement 37 is premature and is disregarded. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CAMERON SHEPARD,

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No. 2:15-cv-1894 KJN P

Plaintiff,
v.

ORDER

CALIFORNIA FORENSIC MEDICAL
GROUP, et al.,
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. Plaintiff again requests that the court appoint counsel. District courts lack authority to

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require counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States

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Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an

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attorney to voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell v. Brewer,

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935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir.

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1990). When determining whether “exceptional circumstances” exist, the court must consider

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plaintiff’s likelihood of success on the merits as well as the ability of the plaintiff to articulate his

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

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965, 970 (9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel).

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The burden of demonstrating exceptional circumstances is on the plaintiff. Id. 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 warrant a request for voluntary assistance of counsel.

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Having considered the factors under Palmer, the court finds that plaintiff has failed to

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meet his burden of demonstrating exceptional circumstances warranting the appointment of

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counsel at this time. Thus, plaintiff’s motion is denied.

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On January 5, 2017, plaintiff filed a document entitled “Pretrial Statement/Exhibits and

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Witness List.” (ECF No. 37.) However, the court has not yet ordered the parties to submit their

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pretrial statements, exhibits or witness lists. Thus, plaintiff’s pretrial statement is premature and

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is disregarded.
On January 2, 2017, defendants filed a motion for summary judgment. (ECF No. 36.)

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Following resolution of the motion for summary judgment, the court will issue, if appropriate, a

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further scheduling order requiring the filing of pretrial statements, exhibits and witness lists.

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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. 35) is denied without

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prejudice; and
2. Plaintiff’s pretrial statement (ECF No. 37) is premature and is disregarded.
Dated: August 8, 2017

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shep1894.31

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