Juarez v. Butts et al

Filing 50

ORDER signed by Magistrate Judge Deborah Barnes on 12/03/17 DENYING 48 Motion to Appoint Counsel and GRANTING 47 Motion for Extension of time. Plaintiff is granted 30 days from the date of this order in which to file a response to defendant's motion to dismiss. Defendant's reply, if any, shall be filed within 7 days thereafter. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSE JUAREZ,

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No. 2:15-cv-1996 JAM DB P
Plaintiff,

v.

ORDER

M. HLAING,
Defendant.

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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 as he is unable to afford counsel and an attorney would make the

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presentation of his case more effective. (ECF No. 48.) Plaintiff also requests an extension of time

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to file his opposition to defendant’s motion to dismiss. (ECF No. 47.)

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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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The court finds good cause for plaintiff’s motion for an extension of time. However,

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plaintiff is warned that any further requests for additional time must be supported by a showing of

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extraordinary circumstances.

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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. 48) is denied;

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2. Plaintiff’s motion for an extension of time (ECF No. 47) is granted; and

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3. Plaintiff is granted thirty days from the date of this order in which to file a response to

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defendant’s motion to dismiss. Defendant’s reply, if any, shall be filed within seven days

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thereafter.

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Dated: December 3, 2017

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DLB:9
DB/orders/prisoner-civil rights/juar1996.31+36

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