Tate v. Andres

Filing 28

ORDER signed by Magistrate Judge Allison Claire on 10/03/19 DENYING 27 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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DEREK TATE,

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Plaintiff,

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No. 2:18-cv-0822 AC P

v.

ORDER

J. ANDRES,

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Defendant.

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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. 27. He is requesting counsel because he is “unable to afford

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counsel,” his “incarceration will greatly limit [his] ability to litigate effectively,” he has limited

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knowledge of the law and limited access to the law library, he is experiencing retaliation by

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prison officials in the form of lost or destroyed property, and counsel would be better able to

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present evidence and cross-examine witnesses at trial. Id. at 2-4.
The United States Supreme Court has ruled that district courts lack authority to require

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counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490

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U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the

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voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d

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1015, 1017 (9th Cir. 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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In the present case, plaintiff has not demonstrated a likelihood of success on the merits
and his claims of indigency, limited legal knowledge and access to the law library, and the

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general limitations experienced due to being in prison are common to most prisoners and

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therefore do not establish the required exceptional circumstances. Furthermore, it is not yet clear

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that this case will proceed to trial, so appointment of counsel on that ground is not warranted. To

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the extent plaintiff is claiming that he is being retaliated against for pursing this lawsuit, there are

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insufficient facts to demonstrate that the loss or destruction of his property is retaliatory.

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Moreover, even if plaintiff is being retaliated against, it is not clear that appointment of counsel

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would be the most appropriate remedy, and plaintiff is free to pursue a separate action for

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retaliation if he wants.

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

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counsel (ECF No. 27) is denied.

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DATED: October 3, 2019

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