Bell v. Martel et al

Filing 17

ORDER signed by Magistrate Judge Carolyn K. Delaney on 7/6/2017 DENYING without prejudice 16 Motion to Appoint Counsel and GRANTING 16 Request for Extension of Time. Plaintiff is granted 60 days from the date of this order to file an amended complaint. (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 MICHAEL XAVIER BELL, 12 13 14 15 No. 2:17-cv-0063 CKD P Plaintiff, v. ORDER MICHAEL MARTEL, et al., Defendants. 16 17 Plaintiff has requested the appointment of counsel. The United States Supreme Court has 18 ruled that district courts lack authority to require counsel to represent indigent prisoners in § 1983 19 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain exceptional 20 circumstances, the court may request the voluntary assistance of counsel pursuant to 28 U.S.C. § 21 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 22 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional circumstances” 23 exist, the court must consider plaintiff’s likelihood of success on the merits as well as the ability 24 of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues 25 involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not abuse 26 discretion in declining to appoint counsel). The burden of demonstrating exceptional 27 circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such as lack of 28 legal education and limited law library access, do not establish exceptional circumstances that 1 1 warrant a request for voluntary assistance of counsel. 2 Here plaintiff’s request for counsel is more focused on obtaining an extension of time to 3 file an amended complaint. While plaintiff states that he is under the influence of psychotropic 4 medication which makes it “difficult to fight or participate in litigation,” he has clearly and 5 succinctly made two separate requests of the court in his motion. It appears to the court that even 6 while medicated plaintiff is able to articulate his own claims and to serve as his own advocate. 7 Having considered the factors under Palmer, the court finds that plaintiff has failed to meet his 8 burden of demonstrating exceptional circumstances warranting the appointment of counsel at this 9 time. 10 To the extent that plaintiff requests a second sixty day extension of time to file an 11 amended complaint the court will grant the request. Good cause appearing, IT IS HEREBY 12 ORDERED that: 13 1. Plaintiff’s motion for the appointment of counsel (ECF No. 16) is denied without 14 prejudice; 15 2. Plaintiff’s request for an extension of time (ECF No. 16) is granted; and 16 3. Plaintiff is granted sixty days from the date of this order in which to file an amended 17 complaint. 18 Dated: July 6, 2017 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 12/ts/bell0063.31+36 27 28 2

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