Garrett v. Macomber et al

Filing 10

ORDER signed by Magistrate Judge Allison Claire on 9/28/2017 DENYING 6 Motion to Expedite Case and DENYING without prejudice 9 Motion to Appoint Counsel. (Henshaw, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WILLIAM ALLEN GARRETT, 12 13 14 No. 2:16-cv-1336 AC P Plaintiff, v. ORDER JEFF MACOMBER, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. 18 § 1983, has filed a motion to expedite his case and a motion for appointment of counsel. ECF 19 Nos. 6, 9. 20 The United States Supreme Court has ruled that district courts lack authority to require 21 counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 22 U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the 23 voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 24 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 25 “When determining whether ‘exceptional circumstances’ exist, a court must consider ‘the 26 likelihood of success on the merits as well as the ability of the [plaintiff] to articulate his claims 27 pro se in light of the complexity of the legal issues involved.’” Palmer v. Valdez, 560 F.3d 965, 28 970 (9th Cir. 2009) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). The burden 1 1 of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common to 2 most prisoners, such as lack of legal education and limited law library access, do not establish 3 exceptional circumstances that would warrant a request for voluntary assistance of counsel. 4 Plaintiff lists only his indigency as grounds for appointing counsel and therefore fails to 5 identify any exceptional circumstances that would warrant the appointment of counsel and the 6 motion will be denied. 7 Plaintiff’s motion for expedited consideration of his case will also be denied. While the 8 court understands plaintiff’s frustration at how long it can take to resolve matters, the Eastern 9 District of California maintains one of the heaviest caseloads in the nation, a significant portion of 10 which is comprised of pro se inmate cases. This sometimes causes unavoidable delays in the 11 resolution of individual matters. 12 Accordingly, IT IS HEREBY ORDERED that: 13 1. Plaintiff’s motion to expedite his case (ECF No. 6) is denied. 14 2. Plaintiff’s motion for appointment of counsel (ECF No. 9) is denied without prejudice. 15 DATED: September 28, 2017 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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