O'Neill v. State of California et al

Filing 10

ORDER signed by Magistrate Judge Allison Claire on 09/28/17 DENYING 5 Motion to Appoint Counsel. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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NEAL O’NEILL,

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No. 2:17-cv-0212 JAM AC P
Plaintiff,

v.

ORDER

STATE OF CALIFORNIA, 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.
Plaintiff asserts that he requires the assistance of counsel based upon the fact that he is

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legally blind which causes him to have trouble even when reading his own drafts. ECF No. 5 at

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1. Although plaintiff’s limited eyesight may make pursuing this action difficult, it is not clear

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that it requires the assistance of counsel as opposed to other assistance plaintiff may be able to

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obtain at the prison. Furthermore, the court has yet to screen the complaint and is therefore

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unable to assess plaintiff’s likelihood of success on the merits or ability to articulate his claims at

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this stage.

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

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counsel (ECF No. 5) is denied without prejudice.

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DATED: September 28, 2017

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