McCarary v. CDCR et al

Filing 21

ORDER signed by Magistrate Judge Kendall J. Newman on 3/22/2018 GRANTING plaintiff 30 days to file objections to the 2/21/2018 findings and recommendations; and DENYING without prejudice plaintiff's 20 motion for the appointment of counsel. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANTHONY McCRARY,

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Plaintiff,

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No. 2:17-cv-1944 KJM KJN P

v.

ORDER

SCOTT KERNAN, et al.,

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Defendants.

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Plaintiff is a state prisoner, proceeding pro se, in an action brought under 42 U.S.C.

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§ 1983. On February 21, 2018, the undersigned recommended that this action be dismissed.

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(ECF No. 15.)

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On March 2, 2018, plaintiff filed a pleading titled “objections to the findings and

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recommendations.” (ECF No. 16.) In these objections, plaintiff states that he cannot access the

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law library because the prison is on lockdown. (Id.) Plaintiff states that due to the lockdown, he

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cannot meet the 14 day deadline to file objections. (Id.) On March 5, 2018, plaintiff filed a letter

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with the court stating that the prison is on lockdown. (ECF No. 17.) Plaintiff states that he

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cannot access the law library. (Id.)
Good cause appearing, plaintiff is granted thirty days from the date of this order to file

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objections to the February 21, 2018 findings and recommendations.

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On March 8, 2018, plaintiff also filed a motion for appointment of counsel. District courts

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lack 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 may

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

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v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36

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(9th Cir. 1990). When determining whether “exceptional circumstances” exist, the court must

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consider plaintiff’s likelihood of success on the merits as well as the ability of the plaintiff to

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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

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meet his burden of demonstrating exceptional circumstances warranting the appointment of

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counsel at this time.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff is granted thirty days from the date of this order to file objections to the

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February 21, 2018 findings and recommendations; and
2. Plaintiff’s motion for the appointment of counsel (ECF No. 20) is denied without

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prejudice.

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Dated: March 22, 2018

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mcca1944.31

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