(PC) Turner v. Ullery et al

Filing 89

ORDER signed by Magistrate Judge Chi Soo Kim on 06/05/2024 DENYING 86 Motion for Reconsideration as untimely and to the extent Plaintiff renews a Motion for Appointment of Counsel, the Motion is DENIED without prejudice. (Nair, C)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANTHONY D.L. TURNER,

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No. 2:22-cv-0002 TLN CSK P

Plaintiff,
v.

ORDER

MICHAEL ULLERY, et al.,
Defendant.

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On April 25, 2024, plaintiff filed a motion for reconsideration of the order denying

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appointment of counsel. (ECF No. 86.) The Court denies the motion as discussed below.

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Untimely Motion for Reconsideration

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Plaintiff did not identify what order he wants this Court to reconsider. The record reflects

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that the only motion for appointment of counsel was filed by plaintiff on November 23, 2022, and

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was denied on December 1, 2022. (ECF Nos. 48, 51.) Local Rule 303(b) states “rulings by

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Magistrate Judges . . . shall be final if no reconsideration thereof is sought from the Court within

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fourteen days . . . from the date of service of the ruling on the parties.” Id. Plaintiff’s motion for

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reconsideration of the assigned magistrate judge’s order of December 1, 2022, is therefore

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untimely and is denied.

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Renewed Motion for Counsel

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To the extent plaintiff renews a motion for appointment of counsel, the Court finds the
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motion unavailing at this juncture. First, the case is closed. Judgment was entered on September

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29, 2023. (ECF No. 81.) Second, on April 19, 2024, the Court recommended that plaintiff’s

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motion to reopen this action be denied. (ECF No. 85.) Plaintiff was recently granted an

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extension of time to file objections. (ECF No. 88.)

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Third, district courts lack authority to require counsel to represent indigent prisoners in

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

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exceptional circumstances, the court may request an attorney to voluntarily represent such a

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

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

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

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

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

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did not abuse discretion in declining to appoint counsel). The burden of demonstrating

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exceptional circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such

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

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circumstances that warrant a request for voluntary assistance of counsel. Having considered the

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factors under Palmer, the court finds that plaintiff failed to meet his burden of demonstrating

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exceptional circumstances warranting the appointment of counsel at this time.

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For the above reasons, plaintiff’s motion for appointment of counsel is denied without
prejudice.

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Therefore, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for reconsideration (ECF No. 86) is denied as untimely; and

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2. To the extent plaintiff renews a motion for appointment of counsel, the motion (ECF

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No. 86) is denied without prejudice.

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Dated: June 5, 2024

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/1/turn0002.rec

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