Stine v. Bureau of Prisons et al

Filing 16

ORDER signed by Magistrate Judge Kendall J. Newman on 6/14/2018 DENYING without prejudice 14 and 15 Motions for the Appointment of 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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MIKEAL GLENN STINE,

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Plaintiff,

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v.

No. 2:18-cv-0684 KJN P

ORDER

BUREAU OF PRISONS, et al.,
Defendants.

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Plaintiff is a federal inmate, proceeding pro se, in an action brought under 28 U.S.C.
§ 1331. Plaintiff has filed to motions that the court appoint counsel.
Initially, the court notes that plaintiff repeats his claim that he needs to obtain witness

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affidavits from other inmates. However, plaintiff’s motion for appointment of counsel were

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signed by plaintiff before the court issued its June 7, 2018 order in which the court addressed the

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witness affidavits. Plaintiff also claims that because this case involves serious medical claims, he

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will need to present a medical expert witness. However, the instant action is proceeding on

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plaintiff’s claim that he was wrongfully validated as a gang member. Plaintiff’s claim concerning

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access to medication was transferred to the District of Colorado and may not be re-pled in any

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amended complaint filed herein.

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As to his request for counsel, district courts lack authority to require counsel to represent
indigent prisoners in section 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298
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(1989). In exceptional circumstances, the court may request an attorney to voluntarily represent

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such a plaintiff. See 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). When determining

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

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

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

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(district court did not abuse discretion in declining to appoint counsel). The burden of

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demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common to most

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

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exceptional circumstances that warrant a request for voluntary assistance of counsel.
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. Because plaintiff has not yet filed an amended complaint, the undersigned is

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unable to ascertain the merits of his claims.

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

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counsel (ECF Nos. 14 and 15) are denied without prejudice.

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Dated: June 14, 2018

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stin0684.31

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