(PC) Mitchell v. Gonzales

[7] 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA [10] 11 JOHN EDWARD MITCHELL, No. 1:23-cv-00062-SAB (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL, 13 v. WITHOUT PREJUDICE 14 C. GONZALES, et al., (ECF No. 44) 15 Defendants. [16] 17 Plaintiff John Edward Mitchell is proceeding pro se in this civil rights action filed 18 pursuant to 42 U.S.C. § 1983 . 19 Currently before the Court is Plaintiff’s motion for appointment of counsel, filed April 25, 20 2024. (ECF No. 44.) In support of the motion Plaintiff states he cannot afford counsel, his 21 imprisonment will limit his ability to litigate, he has limited access to the law library, and a trial 22 will likely involve conflicting testimony where counsel would enable Plaintiff to present evidence 23 and cross examine witnesses. (Id. at 1-2.) 24 The United States Supreme Court has ruled that district courts lack authority to require 25 counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 26 U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the 27 voluntary assistance of counsel pursuant to 28 U.S.C. § 1915 (e)(1). Terrell v. Brewer, 935 F.2d 28 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 1 The test for exceptional circumstances requires the court to evaluate the Plaintiff’s 2 | likelihood of success on the merits and the ability of the Plaintiff to articulate his claims pro se in 3 | light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328 , 4 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances 5 || common to most prisoners, such as lack of legal education and limited law library access, do not 6 | establish exceptional circumstances that would warrant a request for voluntary assistance of 7 | counsel. 8 In the present case, the Court does not find the required exceptional circumstances. The 9 | arguments raised in plaintiff's motion show nothing more than circumstances common to most 10 | inmates. Additionally, Plaintiff's filings in this action show that he is capable of explaining the 11 | nature of his allegations and litigating this matter pro se. Accordingly, Plaintiff's motion for 12 || appointment of counsel is denied, without prejudice. [13] 4 IT IS SO ORDERED. 2 ee 15 | Dated: _ April 29, 2024 OF UNITED STATES MAGISTRATE JUDGE