(PC) Ardds v. Martin

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTOINE L. ARDDS, No. 2:20-cv-0133 TLN KJN P 12 Plaintiff, 13 v. ORDER 14 KENNETH MARTIN, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding pro se, in an action brought under 42 U.S.C. 18 § 1983. Plaintiff requests that the court appoint counsel. District courts lack authority to require 19 counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist. 20 Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney 21 to voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 22 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 23 When determining whether “exceptional circumstances” exist, the court must consider plaintiff’s 24 likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro 25 se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 26 (9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel). The 27 burden of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances 28 //// 1 | common to most prisoners, such as lack of legal education and limited law library access, do not 2 || establish exceptional circumstances that warrant a request for voluntary assistance of counsel. 3 Contrary to plaintiff's statement that this case is complex because it involves a large 4 | number of claims and defendants, including ADA and RA claims, this action was significantly 5 || narrowed following resolution of defendants’ motion for summary judgment on exhaustion 6 || grounds. Although plaintiff included ADA/RA claims in the second amended complaint, plaintiff 7 || was only permitted to amend his complaint to raise Eighth Amendment claims exhausted by 8 || grievance CHCF-HC-20-000548. Indeed, on November 21, 2022, the court struck all claims not 9 || permitted by the district court’s prior order (ECF No. 48), and defendants were relieved of any 10 || obligation to respond thereto. (ECF No. 49.) Thus, this action now proceeds solely on □□□□□□□□□□□ 11 | Eighth Amendment claims as to defendants Kieu, Lundgren, and Bogacs (now known as Levine), 12 || who served on the IDTT committee, and is limited to the allegations exhausted by grievance 13 | CHCF-HC-20-000548. (ECF No. 49 at 1-2.) 14 The record reflects that plaintiff has diligently prosecuted this action and is able to 15 || articulate his claims and arguments. 16 Having considered the factors under Palmer, the court finds that plaintiff failed to meet his 17 || burden of demonstrating exceptional circumstances warranting the appointment of counsel at this 18 | time. 19 Accordingly, IT IS HEREBY ORDERED that plaintiffs motion for the appointment of 20 || counsel (ECF No. 62) is denied without prejudice. 21 | Dated: August 21, 2023 ” Aectl Aharon 23 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 24 /ardd0133.31 25 26 27 28