Saldana v. Spearman et al

Filing 72

ORDER signed by Magistrate Judge Allison Claire on 11/10/2021 DENYING without prejudice plaintiff's 71 request 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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SAMUEL SALDANA,

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No. 2:18-cv-0319 KJM AC P

Plaintiff,
v.

ORDER

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

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Plaintiff has requested the appointment of counsel. ECF No. 71. 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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On October 13, 2021, the undersigned issued findings and recommendations which

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recommended denying defendant’s motion for summary judgment. ECF No. 69. The time for

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filing objections to the findings and recommendations has passed and the findings and

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recommendations are now pending review by the assigned district judge. Accordingly, there is

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currently nothing for plaintiff to do, and plaintiff has not shown the existence of extraordinary

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circumstances warranting the appointment of counsel at this time. In the event the district judge

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adopts the pending findings and recommendations and this case proceeds, plaintiff may renew his

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request for counsel at that time.

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

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counsel, ECF No. 71, is DENIED without prejudice.

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DATED: November 10, 2021

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