Stribling v. Mott et al

Filing 48

ORDER signed by Magistrate Judge Carolyn K. Delaney on 12/20/17 DENYING 47 Motion to Appoint Counsel. (Plummer, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

AARON LAMONT STRIBLING,

12

No. 2:16-cv-0400 CKD P

Plaintiff,

13

v.

14

R. MOTT, et al.,

15

ORDER

Defendants.

16
17

Plaintiff has requested the appointment of counsel. The United States Supreme Court has

18

ruled that district courts lack authority to require counsel to represent indigent prisoners in § 1983

19

cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain exceptional

20

circumstances, the court may request the voluntary assistance of counsel pursuant to 28 U.S.C. §

21

1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900

22

F.2d 1332, 1335-36 (9th Cir. 1990).

23

“When determining whether ‘exceptional circumstances’ exist, a court must consider ‘the

24

likelihood of success on the merits as well as the ability of the [plaintiff] to articulate his claims

25

pro se in light of the complexity of the legal issues involved.’” Palmer v. Valdez, 560 F.3d 965,

26

970 (9th Cir. 2009) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). The burden

27

of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common to

28

most prisoners, such as lack of legal education and limited law library access, do not establish
1

1

exceptional circumstances that would warrant a request for voluntary assistance of counsel.

2

In the present case, plaintiff requests appointment of counsel on the ground that he is

3

unable to take oral depositions of the defendants because he is incarcerated. ECF No. 47. Since

4

plaintiff is proceeding in forma pauperis, the court assumes that it is not actually plaintiff’s

5

incarcerated status that prevents him from taking defendants’ depositions, but his lack of funds.1

6

Not only is this circumstance common to all prisoner, but plaintiff has failed to demonstrate that

7

he is unable to obtain the necessary information through other discovery. Moreover, the

8

appointment of counsel would not guarantee that defendants would be deposed. Accordingly, the

9

court does not find the required exceptional circumstances. Plaintiff’s request for the

10

appointment of counsel will therefore be denied.
Accordingly, IT IS HEREBY ORDERED that plaintiff’s request for the appointment of

11
12

counsel (ECF No. 47) is denied.

13

Dated: December 20, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

14
15
16
17

13:stri0400.31

18
19
20
21
22
23
24
25
26
27
28

1

Although logistically more difficult, if plaintiff does in fact have the funds to pay for a court
reporter, he can take defendants’ depositions.
2