Dennis v. Kerman et al

Filing 64

ORDER signed by Magistrate Judge Allison Claire on 05/20/2020 DENYING 48 Motion to Appoint Counsel without prejudice. (Tupolo, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MATTHEW DENNIS,

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No. 2:16-cv-0542 JAM AC P

Plaintiff,
v.

ORDER

SCOTT KERNAN, et al.,
Defendants.

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Plaintiff, a state prisoner proceeding pro se and in forma pauperis with this civil rights

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action, requests appointment of counsel on the ground that it should lead to a speedier resolution

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of this case and success on plaintiff’s requests to obtain effective treatment for his Hepatitis C.

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ECF No. 48. Attached to plaintiff’s request are several exhibits demonstrating his unsuccessful

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efforts to obtain legal representation on his own. This is plaintiff’s fourth request for appointment

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of counsel, see ECF Nos. 3, 11, 19; his prior requests were denied pending the court’s screening

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of plaintiff’s successive complaints, see ECF Nos. 14, 26.

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This case now proceeds on plaintiff’s Third Amended Complaint as screened by the court

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on April 9, 2020. ECF No. 51. The undersigned’s recommended dismissal of numerous

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defendants is currently pending with the district judge. Id. Service of process on the remaining

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defendants is not yet complete. ECF No. 61. Plaintiff’s request for appointment of counsel was

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filed prior to the court’s decisions on these matters.
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Under 28 U.S.C. § 1915(e)(1), the district court may request the voluntary assistance of an

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available attorney to represent an indigent prisoner in a civil rights case only in certain

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“exceptional circumstances.” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v.

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Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990); see also Mallard v. United States Dist.

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Court, 490 U.S. 296, 298 (1989) (district courts do not have authority to require attorneys to

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represent indigent prisoners in Section 1983 cases). When determining whether “exceptional

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circumstances” exist, the court must consider plaintiff’s likelihood of success on the merits as

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well as his ability to articulate his claims pro se in light of the complexity of the legal issues

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involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). The burden of demonstrating

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exceptional circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such

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as lack of legal education and limited law library access, do not establish exceptional

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circumstances supporting appointment of counsel. Id.

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In the present case, plaintiff has demonstrated that he is a capable writer, prolific filer, and

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strong advocate for himself. Although the court is unable at this time to assess plaintiff’s

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likelihood of success on the merits of his claims, it is clear that plaintiff is capable of pursuing his

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allegations and claims pro se. For these reasons, the court finds that plaintiff does not meet the

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exceptional circumstances standard.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for appointment of

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counsel, ECF No. 48, is denied without prejudice.

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DATED: May 20, 2020

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