Bell v. Martel et al

Filing 50

ORDER signed by District Judge Morrison C. England, Jr on 10/23/18 AFFIRMING 32 Order and DENYING 34 Motion to Appoint Counsel without prejudice.(Coll, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL XAVIER BELL,

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No. 2:17-cv-0063 MCE CKD P

Plaintiff,
v.

ORDER

MICHAEL MARTEL, et al.,
Defendants.

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On August 10, 2018, Plaintiff filed Motions for Reconsideration and Appointment of

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Counsel (ECF No. 34), asking the Court to reconsider the Magistrate Judge’s July 31, 2018 order

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(ECF No. 32) denying Plaintiff’s Motion for Discovery (ECF No. 31). Pursuant to Local Rule

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303(f), a Magistrate Judge’s orders shall be upheld unless “clearly erroneous or contrary to law.”

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Upon review of the entire file, the Court finds that it does not appear that the Magistrate Judge’s

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ruling was clearly erroneous or contrary to law.

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Additionally, Plaintiff has requested the appointment of counsel. District courts lack

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authority to require counsel to represent indigent prisoners in section 1983 cases. Mallard v.

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United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the Court

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may request an attorney to voluntarily represent such a Plaintiff. See 28 U.S.C. § 1915(e)(1);

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Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332,

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1335-36 (9th Cir. 1990). When determining whether “exceptional circumstances” exist, the Court
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must consider a plaintiff’s likelihood of success on the merits as well as the ability of the plaintiff

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to articulate his claims pro se in light of the complexity of the legal issues involved. Palmer v.

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Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not abuse discretion in declining to

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appoint counsel). The burden of demonstrating exceptional circumstances is on the plaintiff. Id.

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Circumstances common to most prisoners, such as lack of legal education and limited law library

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access, do not establish exceptional circumstances that warrant a request for voluntary assistance

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of counsel.

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Having considered the factors under Palmer, the Court finds that Plaintiff has failed to
meet his burden of demonstrating exceptional circumstances warranting the appointment of
counsel at this time.

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Therefore, it is hereby ordered that:

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1. Upon reconsideration, the Order of the Magistrate Judge filed July 31, 2018 (ECF No.

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32), is AFFIRMED; and
2. Plaintiff’s request for the Appointment of Counsel (ECF No. 34) is denied without
prejudice.
IT IS SO ORDERED.
Dated: October 23, 2018

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