Palacios vs. Smith, et al.

Filing 44

ORDER signed by Magistrate Judge Carolyn K. Delaney on 06/26/19 DENYING 43 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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JORGE PALACIOS,

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No. 2:17-cv-2500 TLN CKD P

Plaintiff,
v.

ORDER

KEVIN SMITH, et al.,
Defendants.

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Plaintiff has requested the appointment of counsel. (ECF No. 43.) The United States

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Supreme Court has ruled that district courts lack authority to require counsel to represent indigent

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prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In

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certain exceptional circumstances, the district court may request the voluntary assistance of

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counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.

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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 based on his limited knowledge of the law,

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difficulty in gathering evidence for trial, “simple English,” and health problems. (ECF No. 43.)

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These circumstances are common to most prisoners and do not establish exceptional

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circumstances warranting the appointment of counsel. Moreover, plaintiff has thus far

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demonstrated that he is capable of articulating his claims without assistance.

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

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counsel (ECF No. 43) is denied.

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Dated: June 26, 2019

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