Brown v. Benavidez et al

Filing 43

ORDER signed by Magistrate Judge Edmund F. Brennan on 08/31/20 DENYING 42 Motion to Appoint Counsel. (Plummer, M)

Case 2:18-cv-01015-KJM-EFB Document 43 Filed 08/31/20 Page 1 of 2
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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ELI’EZER RE’UEL BEN-BINYAMIN,

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No. 2:18-cv-1015-KJM-EFB P

Plaintiff,
v.

ORDER

J. BENAVIDEZ, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. He requests that the court appoint him counsel and modify the discovery and

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scheduling order so that appointed counsel can assist him with discovery. ECF No. 42.

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District courts lack authority to require counsel to represent indigent prisoners in section

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1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional

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circumstances, the court may request an attorney to voluntarily to represent such a plaintiff. See

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

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

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circumstances” exist, the court must consider the likelihood of success on the merits as well as the

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ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues

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involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Having considered those factors,

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the court finds there are no exceptional circumstances in this case. In light of this denial,
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Case 2:18-cv-01015-KJM-EFB Document 43 Filed 08/31/20 Page 2 of 2
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plaintiff’s motion to modify the discovery and scheduling order, which is premised on counsel

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being appointed for plaintiff, is denied as moot.

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Accordingly, IT IS ORDERED that plaintiff’s request for appointment of counsel and to

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modify the discovery and scheduling order (ECF No. 42) is DENIED without prejudice.

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DATED: August 31, 2020.

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