Bivins v. Ju et al

Filing 89

ORDER signed by Magistrate Judge Kendall J. Newman on 08/18/20 DENYING 88 Motion to Appoint Counsel. Plaintiff is granted 60 days in which to file objections to the findings and recommendations. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSEPH BIVINS,

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No. 2:16-cv-0389 MCE KJN P
Plaintiff,

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v.

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DR. JEU, et al.,

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ORDER

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 has renewed his request that the court appoint counsel. District courts lack

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

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

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

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

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(9th Cir. 1990). When determining whether “exceptional circumstances” exist, the court must

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

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articulate his claims pro se in light of the complexity of the legal issues involved. Palmer v.

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Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not abuse discretion in declining to

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appoint counsel). The burden of demonstrating exceptional circumstances is on the plaintiff. Id.

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Circumstances common to most prisoners, such as lack of legal education and limited law library
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access, do not establish exceptional circumstances that warrant a request for voluntary assistance

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of counsel.

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On April 14, 2020, the undersigned recommended that defendant Dr. Borges’ motion for

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summary judgment be granted. While the undersigned appreciates the difficulties plaintiff faces

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in connection with the precautions being taken in light of the COVID-19 pandemic, the court has

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considered the factors under Palmer, and finds that plaintiff cannot meet his burden of

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demonstrating exceptional circumstances warranting the appointment of counsel at this time.

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However, in an abundance of caution, plaintiff is granted another extension of time in

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which to file objections.

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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. 88) is denied without

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prejudice; and
2. Plaintiff is granted sixty days in which to file objections to the findings and

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recommendations.

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Dated: August 18, 2020

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/bivi0389.31(2)

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