Chambers v. Price et al

Filing 36

ORDER signed by Magistrate Judge Kendall J. Newman on 8/28/2017 DENYING, without prejudice, plaintiff's 34 motion for the appointment of counsel. (Yin, K)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JEROME CHAMBERS, 12 13 14 15 No. 2:15-cv-2274 GEB KJN P Plaintiff, v. ORDER JEROME PRICE, et al., Defendants. 16 17 Plaintiff is a state prisoner, proceeding pro se, in an action brought under 42 U.S.C. 18 § 1983. Plaintiff requests that the court appoint counsel. District courts lack authority to require 19 counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist. 20 Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney 21 to voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 22 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 23 When determining whether “exceptional circumstances” exist, the court must consider plaintiff’s 24 likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro 25 se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 26 (9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel). The 27 burden of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances 28 common to most prisoners, such as lack of legal education and limited law library access, do not 1 1 2 establish exceptional circumstances that warrant a request for voluntary assistance of counsel. Plaintiff alleges that he suffers from A.D.H.D, bipolar disorder and that he has a learning 3 disability. The undersigned observes that despite these conditions, plaintiff was able to file an 4 amended complaint containing potentially colorable claims for relief. This action is set for a 5 settlement conference before the undersigned on December 20, 2017. The undersigned will 6 assess plaintiff’s ability to litigate this action following the settlement conference. If warranted, 7 counsel will be appointed. 8 9 10 11 Having considered the factors under Palmer, the court finds that plaintiff has failed to meet his burden of demonstrating exceptional circumstances warranting the appointment of counsel at this time. Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for the appointment of 12 counsel (ECF No. 34) is denied without prejudice. 13 Dated: August 28, 2017 14 15 16 cham2274.31 17 18 19 20 21 22 23 24 25 26 27 28 2

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