Stribling v. Mott et al
Filing
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ORDER signed by Magistrate Judge Carolyn K. Delaney on 12/20/17 DENYING 47 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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AARON LAMONT STRIBLING,
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No. 2:16-cv-0400 CKD P
Plaintiff,
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v.
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R. MOTT, et al.,
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ORDER
Defendants.
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Plaintiff has requested the appointment of counsel. The United States Supreme Court has
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ruled that district courts lack authority to require counsel to represent indigent prisoners in § 1983
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cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain exceptional
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circumstances, the court may request the voluntary assistance of counsel pursuant to 28 U.S.C. §
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1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900
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F.2d 1332, 1335-36 (9th Cir. 1990).
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“When determining whether ‘exceptional circumstances’ exist, a court must consider ‘the
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likelihood of success on the merits as well as the ability of the [plaintiff] to articulate his claims
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pro se in light of the complexity of the legal issues involved.’” Palmer v. Valdez, 560 F.3d 965,
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970 (9th Cir. 2009) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). The burden
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of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common to
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most prisoners, such as lack of legal education and limited law library access, do not establish
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exceptional circumstances that would warrant a request for voluntary assistance of counsel.
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In the present case, plaintiff requests appointment of counsel on the ground that he is
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unable to take oral depositions of the defendants because he is incarcerated. ECF No. 47. Since
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plaintiff is proceeding in forma pauperis, the court assumes that it is not actually plaintiff’s
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incarcerated status that prevents him from taking defendants’ depositions, but his lack of funds.1
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Not only is this circumstance common to all prisoner, but plaintiff has failed to demonstrate that
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he is unable to obtain the necessary information through other discovery. Moreover, the
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appointment of counsel would not guarantee that defendants would be deposed. Accordingly, the
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court does not find the required exceptional circumstances. Plaintiff’s request for the
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appointment of counsel will therefore be denied.
Accordingly, IT IS HEREBY ORDERED that plaintiff’s request for the appointment of
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counsel (ECF No. 47) is denied.
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Dated: December 20, 2017
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CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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Although logistically more difficult, if plaintiff does in fact have the funds to pay for a court
reporter, he can take defendants’ depositions.
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