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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 NEAL O’NEILL, 12 13 14 15 No. 2:17-cv-0212 JAM AC P Plaintiff, v. ORDER STATE OF CALIFORNIA, 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 district court may request the voluntary assistance of counsel pursuant to 28 21 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. 22 Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 23 “When determining whether ‘exceptional circumstances’ exist, a court must consider ‘the 24 likelihood of success on the merits as well as the ability of the [plaintiff] to articulate his claims 25 pro se in light of the complexity of the legal issues involved.’” Palmer v. Valdez, 560 F.3d 965, 26 970 (9th Cir. 2009) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). The burden 27 of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common to 28 most prisoners, such as lack of legal education and limited law library access, do not establish 1 1 2 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 3 legally blind which causes him to have trouble even when reading his own drafts. ECF No. 5 at 4 1. Although plaintiff’s limited eyesight may make pursuing this action difficult, it is not clear 5 that it requires the assistance of counsel as opposed to other assistance plaintiff may be able to 6 obtain at the prison. Furthermore, the court has yet to screen the complaint and is therefore 7 unable to assess plaintiff’s likelihood of success on the merits or ability to articulate his claims at 8 this stage. 9 Accordingly, IT IS HEREBY ORDERED that plaintiff’s request for the appointment of 10 counsel (ECF No. 5) is denied without prejudice. 11 DATED: September 28, 2017 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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