Garces v. Pickett et al

Filing 44

ORDER signed by Magistrate Judge Allison Claire on 1/16/2019 DENYING plaintiff's 39 motion for the appointment of counsel and DENYING plaintiff's 38 motion to amend. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LUIS MANUEL GARCES,

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Plaintiff,

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v.

No. 2:17-cv-0319 JAM AC P

ORDER

J. PICKETT, et al.,
Defendants.

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Plaintiff, a state prisoner proceeding pro se with a civil rights action, has requested
appointment of counsel and leave to amend the complaint.
The United States Supreme Court has ruled that district courts lack authority to require

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counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490

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U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the

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voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d

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1015, 1017 (9th Cir. 1991); Wood v. 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 requests appointment of counsel on the grounds that he has been unable to find an

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attorney to represent him and he has limited access to the law library and limited knowledge of

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the law. ECF No. 39. However, these circumstances are common to most prisoners.

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Furthermore, the complaint has been found to state a claim and service has been ordered on

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defendants Chapman and Pickett (ECF No. 21), demonstrating that plaintiff thus far has been

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sufficiently capable of articulating his claims. The request for appointment of counsel will

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therefore be denied.

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Plaintiff has also requested leave to amend the complaint. ECF No. 38. However, the

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motion is not accompanied by a proposed amended complaint, as required by Local Rule 137(c).

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Id. Furthermore, he states that he is seeking to amend the claims against defendants “Barton,

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Chaake, S.L. Chapman, L. Lopez, R. Briggs, and M. Voong.” Id. With the exception of the

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claims against Chapman, the claims against these defendants have been dismissed without leave

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to amend. ECF No. 33. The motion to amend will therefore be denied.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for the appointment of counsel (ECF No. 39) is denied.

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2. Plaintiff’s motion to amend (ECF No. 38) is denied.

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DATED: January 16, 2019

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