Scott v. California Health Care Facility

Filing 26

ORDER signed by Magistrate Judge Carolyn K. Delaney on 2/26/2020 GRANTING 25 Motion for Extension of Time; DENYING 25 Motion to Appoint Counsel; ORDERING the stay imposed in this action remains in place; and ORDERING if Plaintiff is not ready to submit an amended complaint by 7/1/2020, Plaintiff to file a status report. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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HOWARD SCOTT,

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Plaintiff,

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No. 2:18-cv-0635 TLN CKD P

v.

ORDER

CALIFORNIA HEALTH CARE
FACILITY,
Defendant.

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Plaintiff is a California prisoner proceeding pro se. On August 29, 2018, this action was

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stayed so that plaintiff could locate certain documents and retain counsel. Plaintiff now asks that

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the court appoint counsel. District courts lack authority to require counsel to represent indigent

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

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In exceptional circumstances, the court may request an attorney to voluntarily represent such a

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plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991);

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Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether

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“exceptional circumstances” exist, the court must consider plaintiff’s likelihood of success on the

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merits as well as the ability of the plaintiff to articulate his claims pro se in light of the complexity

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of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court

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did not abuse discretion in declining to appoint counsel). The burden of demonstrating

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exceptional circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such

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as lack of legal education and limited law library access, do not establish exceptional

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circumstances that warrant a request for voluntary assistance of counsel.

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Having considered the factors under Palmer, the court finds that plaintiff has failed to

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meet his burden of demonstrating exceptional circumstances warranting the appointment of

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counsel at this time.

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Alternatively, plaintiff asks that the stay imposed in this action remain in place another

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120 days while plaintiff attempts to compose an amended complaint. Good cause appearing, that

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request will be granted.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request for the appointment of counsel (ECF No. 25) is denied.

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2. Plaintiff’s motion for an extension of time (ECF No. 25) is granted.

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3. The stay imposed in this action remains in place.

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4. If plaintiff is not ready to submit an amended complaint by July 1, 2020, plaintiff shall

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file a status report.

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Dated: February 26, 2020

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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1/bh
scot0635.31+36(2)

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