Saldana v. Spearman et al

Filing 39

ORDER signed by Magistrate Judge Allison Claire on 4/08/20 DENYING 38 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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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, a state prisoner proceeding pro se with a civil rights action, has requested

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appointment of counsel. ECF No. 38. The United States Supreme Court has ruled that district

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courts lack authority to require counsel to represent indigent prisoners in § 1983 cases. Mallard

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v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the

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district court may request the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1).

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

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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 counsel on the grounds that his incarceration will greatly limit his ability

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to litigate. ECF No. 38. Specifically, he asserts that an attorney would be better able to negotiate

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a settlement and present evidence and cross-examine witnesses at trial. Id. He also argues that he

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requires an attorney to obtain medical experts, depose defendant and other witnesses, and to

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obtain defendant’s file. Id. These circumstances are common to most prisoners and are therefore

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not exceptional. Furthermore, it has not yet been determined that this case will proceed to trial,

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so any requests for counsel based on the need for representation at trial are premature, and

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plaintiff has not demonstrated that he will be unable to obtain the evidence he requires through

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written discovery requests. To the extent plaintiff claims that he requires medical experts, this

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case involves an alleged excessive use of force, not deficient medical treatment.

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

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counsel, ECF No. 38, is denied.

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DATED: April 8, 2020

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