Saldana v. Spearman et al

Filing 33

ORDER signed by Magistrate Judge Allison Claire on 12/16/2019 DENYING 32 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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SAMUEL SALDANA,

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No. 2:18-cv-0319 AC P

Plaintiff,
v.

ORDER

M.E. SPEARMAN, et al.,
Defendants.

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Plaintiff has requested the appointment of counsel. ECF No. 32. 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.
Plaintiff requests counsel on the grounds that he is indigent and his incarceration will

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greatly limit his ability to litigate. ECF No. 32. He also asserts that an attorney would be better

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able to present evidence and cross-examine witnesses. Id. These circumstances are common to

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most prisoners and are therefore not exceptional. Furthermore, it has not yet been determined that

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this case will proceed to trial, so any requests for counsel based on the need for representation at

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trial are premature.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s request for the appointment of
counsel (ECF No. 32) is denied.
DATED: December 16, 2019

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