Johnson v. Chau et al

Filing 33

ORDER signed by Magistrate Judge Kendall J. Newman on 1/4/2018 DENYING without prejudice 31 Motion for Appointment of Counsel. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WILLIAM JOHNSON,

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No. 2:16-cv-1536 JAM KJN P

Plaintiff,

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v.

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J. CHAU, et al.,

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ORDER

Defendants.

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Plaintiff is a state prisoner, proceeding pro se, in an action brought under 42 U.S.C.

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§ 1983. This case proceeds on plaintiff’s claims that defendants were deliberately indifferent to

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plaintiff’s serious medical needs by denying plaintiff medications prescribed at two prior prisons,

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and which previously successfully managed plaintiff’s severe pain. (ECF No. 13 at 1.) In his

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recent filing, plaintiff requests that the court appoint counsel. Plaintiff argues that he is

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“unlearned in the law, and has been assisted throughout this process by a qualified legal

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assistant.” (ECF No. 31 at 1.) Plaintiff states that this assistant is about to be transferred, leaving

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plaintiff at a “great disadvantage should he be forced to proceed without such assistance.” (ECF

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No. 31 at 3.) Plaintiff complains that jailhouse lawyers are not vetted by the California

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Department of Corrections and Rehabilitation, and often attempt to extort money from

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unsuspecting prisoners desperate to receive legal assistance.

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District courts lack authority to require counsel to represent indigent prisoners in section

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1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional

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circumstances, the court may request an attorney to voluntarily represent such a plaintiff. See 28

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U.S.C. § 1915(e)(1). 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). 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 the ability of the plaintiff to articulate his claims pro se in light of the complexity of the

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legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not

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abuse discretion in declining to appoint counsel). The burden of demonstrating exceptional

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circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such as lack of

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legal education and limited law library access, do not establish exceptional circumstances that

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warrant a request for voluntary assistance of counsel.

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Having considered the factors under Palmer, the court finds that plaintiff has failed to

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meet his burden of demonstrating exceptional circumstances warranting the appointment of

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counsel at this time. All defendants have not yet filed a responsive pleading, and no discovery

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has been propounded. At this stage of the proceeding, the court is unable to determine whether

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plaintiff is likely to succeed on the merits of his claim.

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

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counsel (ECF No. 31) is denied without prejudice.

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Dated: January 4, 2018

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