Dixon v. Oleachea, et al.

Filing 61

ORDER signed by Magistrate Judge Allison Claire on 05/28/19 DENYING 55 Motion to Appoint Counsel. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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NATHANIEL DIXON,

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No. 2:15-cv-2372 KJM AC P

Plaintiff,
v.

ORDER

D. OLEACHEA, et al.,
Defendants.

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Plaintiff, a state prisoner proceeding pro se with this civil rights action, has filed a second

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request for appointment of counsel. Plaintiff argues that appointment is warranted because this

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case “contains several different legal claims, with each claim involving a different set of

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defendants;” involves medical issues that may require expert testimony;” “will require discovery

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of documents and depositions of a number of witnesses;” and because jury trial has been

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demanded. ECF No. 55.

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Although district courts lack authority to require counsel to represent indigent prisoners in

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Section 1983 civil rights cases, Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989), in

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certain exceptional circumstances a district court may request the voluntary assistance of counsel

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pursuant to 28 U.S.C. § 1915(e)(1), see Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991);

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Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). Exceptional circumstances

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include plaintiff’s inability to articulate his claims pro se coupled with a likelihood of success on
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the merits of his claims. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986);

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Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances common to most prisoners,

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such as lack of legal education and limited law library access, do not establish the requisite

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exceptional circumstances.

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Plaintiff’s first request for appointment of counsel was denied on the ground, inter alia,

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that plaintiff had capably identified and articulated his claims pro se. ECF No. 8 at 15. Indeed,

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this case has survived defendants’ motion to dismiss plaintiff’s First Amended Complaint and

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now proceeds on the merits of his claims. See ECF Nos. 47, 49. This result supports inferences

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both that plaintiff has a reasonable possibility of success on the merits of his claims and that he

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has capably represented himself through this stage of the proceedings. This scenario does not

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demonstrate exceptional circumstances warranting appointment of counsel at the present time.

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Therefore, plaintiff’s instant request for appointment of counsel will be denied without prejudice.

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Moreover, this case is set for a settlement conference on June 6, 2019, at which plaintiff is

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scheduled to appear pro se by videoconference. See ECF Nos. 52, 56.
Accordingly, IT IS HEREBY ORDERED that plaintiff’s instant request for appointment

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of counsel, ECF No. 55, is denied without prejudice.

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DATED: May 28, 2019

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