Logan v. Gamboa

Filing 47

ORDER signed by Magistrate Judge Allison Claire on 6/16/2017 DENYING plaintiff's 46 request for the appointment of counsel. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMES DAVID LOGAN, II,

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No. 2:16-cv-2020 AC P

Plaintiff,
v.

ORDER

D. GAMBOA, et al,
Defendants.

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

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

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

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circumstances, the district court may request the voluntary assistance of counsel pursuant to 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).

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

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

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

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

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

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most prisoners, such as lack of legal education and limited law library access, do not establish
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exceptional circumstances that would warrant a request for voluntary assistance of counsel.

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Plaintiff has requested the appointment of counsel multiple times in the past, often citing

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his lack of income (ECF Nos. 28, 30, 38 ), limited education (ECF Nos. 2, 19, 20, 28, 30, 38 ),

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limited legal knowledge (ECF Nos. 2, 19, 20, 28, 30, 38 ), limited access to law library (ECF

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Nos. 19, 20, 28, 30, 38), inability to obtain evidence through discovery (ECF Nos. 2, 28, 30),

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health concerns (ECF No. 18), and inability to find or employ an attorney (ECF No. 18, 25, 28,

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30). In this most recent request for appointment of counsel, plaintiff claims lack of income,

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limited education, limited access to legal knowledge, limited access to law library, inability to

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obtain evidence through discovery, inability to find or employ an attorney, and the difficulty of

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representing himself at trial. ECF No. 46.

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These requests list circumstances common to most inmates and are essentially the same

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every time, with many of them using boilerplate forms. Additionally, a number of his requests

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are based in part on the difficulties of proceeding at trial, and it has not yet been determined that

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this case will go to trial. Finally, as plaintiff has been previously advised, the court is unable to

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determine his likelihood of success on the merits because there is no complaint pending. For

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these reasons, his most recent request for counsel will be denied and any further requests based on

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plaintiff’s case going to trial will be summarily denied until it is decided that this case will go to

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trial.

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

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counsel (ECF No. 46) is denied.

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DATED: June 16, 2017

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