O'Connor v. Perez et al

Filing 101

ORDER signed by Magistrate Judge Deborah Barnes on 9/16/2020 DENYING plaintiff's 99 motion for the appointment of counsel. Counsel for defendants is instructed to: (a) Contact the Litigation Coordinator at CHCF todetermine whether plaintiff has access to law library materials and photocopying assistance; and (b) Within 30 days, file and serve a statementreflecting the findings of such an inquiry, including all appropriatedeclarations. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GLENN O’CONNOR,

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No. 2:18-cv-1057 DB P

Plaintiff,

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v.

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W. PEREZ, et al.,

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ORDER

Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights

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action pursuant to 42 U.S.C. § 1983. Plaintiff claims defendants violated his Eighth Amendment

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rights. Presently before the court is plaintiff’s motion to appoint counsel. (ECF No. 99.)
Plaintiff argues the court should appoint counsel because prison staff have denied him

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access to law library resources as he has not been given pens or sufficient paper. Additionally,

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plaintiff has been told that staff will not copy documents. Plaintiff claims that as a result he

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cannot represent himself.
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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The test for exceptional circumstances requires the court to evaluate the plaintiff’s

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likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in

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light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328,

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1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances

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common to most prisoners, such as lack of legal education and limited law library access, do not

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establish exceptional circumstances that would warrant a request for voluntary assistance of

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counsel.

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In the present case, the court does not find the required exceptional circumstances.
Plaintiff has shown that he is able to articulate his claims pro se in this action. Therefore, the

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court will deny plaintiff’s motion. However, the court takes seriously plaintiff’s allegation that he

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has not been provided with sufficient materials and photocopying assistance to proceed in this

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action. Accordingly, the court will direct counsel for defendants to ascertain what access plaintiff

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presently has to legal materials and copies of required documents.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for the appointment of counsel (ECF No. 99) is denied.

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2. Counsel for defendants is instructed to:

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a. Contact the Litigation Coordinator at California Health Care Facility to

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determine whether plaintiff has access to law library materials and

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photocopying assistance; and

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b. Within thirty (30) days of the date of this order, file and serve a statement

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reflecting the findings of such an inquiry, including all appropriate

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declarations.

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Dated: September 16, 2020

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DB:12
DB:1/Orders/Prisoner/Civil.Rights/ocon1057.31(2)

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