(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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY D.L. TURNER, 12 13 14 15 No. 2:22-cv-0002 TLN CSK P Plaintiff, v. ORDER MICHAEL ULLERY, et al., Defendant. 16 17 On April 25, 2024, plaintiff filed a motion for reconsideration of the order denying 18 appointment of counsel. (ECF No. 86.) The Court denies the motion as discussed below. 19 Untimely Motion for Reconsideration 20 Plaintiff did not identify what order he wants this Court to reconsider. The record reflects 21 that the only motion for appointment of counsel was filed by plaintiff on November 23, 2022, and 22 was denied on December 1, 2022. (ECF Nos. 48, 51.) Local Rule 303(b) states “rulings by 23 Magistrate Judges . . . shall be final if no reconsideration thereof is sought from the Court within 24 fourteen days . . . from the date of service of the ruling on the parties.” Id. Plaintiff’s motion for 25 reconsideration of the assigned magistrate judge’s order of December 1, 2022, is therefore 26 untimely and is denied. 27 Renewed Motion for Counsel 28 To the extent plaintiff renews a motion for appointment of counsel, the Court finds the 1 1 motion unavailing at this juncture. First, the case is closed. Judgment was entered on September 2 29, 2023. (ECF No. 81.) Second, on April 19, 2024, the Court recommended that plaintiff’s 3 motion to reopen this action be denied. (ECF No. 85.) Plaintiff was recently granted an 4 extension of time to file objections. (ECF No. 88.) 5 Third, district courts lack authority to require counsel to represent indigent prisoners in 6 section 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In 7 exceptional circumstances, the court may request an attorney to voluntarily represent such a 8 plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); 9 Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether 10 “exceptional circumstances” exist, the court must consider plaintiff’s likelihood of success on the 11 merits as well as the ability of the plaintiff to articulate his claims pro se in light of the complexity 12 of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court 13 did not abuse discretion in declining to appoint counsel). The burden of demonstrating 14 exceptional circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such 15 as lack of legal education and limited law library access, do not establish exceptional 16 circumstances that warrant a request for voluntary assistance of counsel. Having considered the 17 factors under Palmer, the court finds that plaintiff failed to meet his burden of demonstrating 18 exceptional circumstances warranting the appointment of counsel at this time. 19 20 For the above reasons, plaintiff’s motion for appointment of counsel is denied without prejudice. 21 Therefore, IT IS HEREBY ORDERED that: 22 1. Plaintiff’s motion for reconsideration (ECF No. 86) is denied as untimely; and 23 2. To the extent plaintiff renews a motion for appointment of counsel, the motion (ECF 24 No. 86) is denied without prejudice. 25 Dated: June 5, 2024 26 27 28 /1/turn0002.rec 2

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