Snowden v. Yule et al

Filing 56

ORDER signed by Magistrate Judge Allison Claire on 3/13/2020 DENYING without prejudice 55 Motion to Appoint Counsel. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CURTIS SNOWDEN, III,

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No. 2:17-cv-2167 TLN AC P

Plaintiff,

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v.

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M. YULE, et al.,

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ORDER

Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with this civil rights

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action filed pursuant to 42 U.S.C. § 1983. Currently pending is plaintiff’s request for

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appointment of counsel. For the reasons set forth below, plaintiff’s request will be denied without

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prejudice.

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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). The

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test for exceptional circumstances requires the court to evaluate the plaintiff’s likelihood of

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success on the merits and the ability of the plaintiff to articulate his claims pro se in light of the

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complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th
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Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). 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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Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009).

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This is plaintiff’s fifth request for appointment of counsel. ECF No. 55; see also ECF No.

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26 at 8-9 (denying prior requests). As set forth in the screening order, the allegations that

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plaintiff’s apparent tendon rupture went undiagnosed and inadequately treated by defendants for a

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period of two months, causing plaintiff both physical and mental injuries, indicate that this case

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may have merit. See ECF No. 26. However, many of the grounds upon which plaintiff requests

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appointment – unable to afford retained counsel, imprisonment and institutional transfers, and

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limited access to the prison law library – are matters common to most prisoners and therefore do

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not present the requisite “exceptional circumstances” warranting appointment of voluntary

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counsel.

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At his juncture, defendants only recently appeared in this action and did so by filing a

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motion to dismiss or, in the alternative, for more definite statement. ECF No. 48. Plaintiff sought

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and obtained three extensions of time within which to respond to defendants’ motion, ECF Nos.

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49-54, but has not yet done so. The undersigned will soon be issuing findings and

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recommendations on defendants’ motion. This litigation remains at an early stage, and the court

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finds that appointment of counsel is not warranted at this stage of the proceeding.

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

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counsel, ECF No. 55, is denied without prejudice.

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DATED: March 13, 2020

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