Harris v. Macomber et al

Filing 146

ORDER signed by Magistrate Judge Deborah Barnes on 10/4/22 DENYING 134 Motion to Appoint Counsel without prejudice. (Her, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GRADY HARRIS,

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Plaintiff,

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No. 2:16-cv-0830 TLN DB P

v.

ORDER

JEFF MACOMBER, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42

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U.S.C. § 1983. Presently before the court is plaintiff’s motion to appoint counsel. (ECF No.

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134.)

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In support of his motion to appoint counsel plaintiff argues that his imprisonment limits

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his ability to litigate, the issues are complex, he has limited access to the law library, he failed to

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effectively participate in the discovery process, trial will involve conflicting testimony, and he has

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tried to obtain a lawyer. (Id. at 1-2.)

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The United States Supreme Court has ruled that district courts lack authority to require

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counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490

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U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the

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voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d

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1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).
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The test for exceptional circumstances requires the court to evaluate the plaintiff’s

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likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in

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light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328,

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1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances

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

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establish exceptional circumstances that would warrant a request for voluntary assistance of

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counsel. In the present case, the court does not find the required exceptional circumstances.

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While the court is sympathetic to the inherent difficulties in litigating a case while
incarcerated, the arguments raised in support of plaintiff’s motion are largely circumstances

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common to most inmates. Throughout this litigation plaintiff has shown he is able to articulate

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his claims pro se in light of the complexity involved. Therefore, the undersigned will deny the

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motion to appoint counsel without prejudice.
Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for the appointment of

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counsel (ECF No. 134) is denied without prejudice.

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Dated: October 4, 2022

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DB:12

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DB/DB Prisoner Inbox/Civil Rights/R/harr0830.31(3)

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