Stephen v. Montejo et al

Filing 115

ORDER signed by Magistrate Judge Deborah Barnes on 5/9/2022 DENYING 113 Motion to Appoint Counsel. (Perdue, C.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JIMMIE STEPHEN,

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No. 2:18-cv-1796 KJM DB P

Plaintiff,
v.

ORDER

E. MONTEJO,
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. This case is proceeding on plaintiff’s claim that defendant Montejo was

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deliberately indifferent to plaintiff’s serious medical need in violation of the Eighth Amendment.

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Plaintiff argues that he is inexperienced in the law, has limited law library access, and cannot

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afford an attorney. Plaintiff further argues that the issues in his case are complex and, if the case

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goes to trial, an attorney would be better able to present evidence and cross-examine witnesses.

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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. In the present case, plaintiff’s difficulties in litigating this case are those faced by most

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prisoners. This court does not find the required exceptional circumstances.

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

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counsel (ECF No. 113) is denied.

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Dated: May 9, 2022

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DLB:9
DB prisoner inbox/civil rights/R/step1796.31(4)

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