(PC) Johnson v. Diaz

Opinion

1 2 3 4 5 6 7 10 11 VANDELL JOHNSON, No. 2:22-cv-0606 DAD AC P 12 Plaintiff, 13 v. ORDER 14 RALPH DIAZ, et al., 15 Defendants. 16 17 Plaintiff has filed a motion seeking the appointment of counsel and leave to amend the 18 complaint. ECF No. 32. 19 The United States Supreme Court has ruled that district courts lack authority to require 20 counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 21 U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the 22 voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 23 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 24 “When determining whether ‘exceptional circumstances’ exist, a court must consider ‘the 25 likelihood of success on the merits as well as the ability of the [plaintiff] to articulate his claims 26 pro se in light of the complexity of the legal issues involved.’” Palmer v. Valdez, 560 F.3d 965, 27 970 (9th Cir. 2009) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). The burden 28 of demonstrating exceptional circumstances is on the plaintiff. Id. ] Plaintiff does not identify any grounds for appointing counsel in this case, much less the 2 || exceptional circumstances necessary to warrant the appointment of counsel. Furthermore, this 3 || case has been referred to the Post-Screening ADR Project and is currently stayed and awaiting 4 || scheduling of a settlement conference, and there is no indication that plaintiff is unable to 5 || represent himself at the settlement conference. For these reasons, plaintiff has not shown the 6 || existence of extraordinary circumstances warranting the appointment of counsel. 7 With respect to plaintiffs request for leave to amend the complaint, this case is currently 8 | stayed, and no pleadings or documents aside from those identified in the order referring this case 9 || to the Post-Screening ADR Project are to be filed. Furthermore, the motion to amend is not 10 || accompanied by a proposed amended complaint. The motion will therefore be denied. Plaintiff 11 || 1s advised that in the event this case does not settle, and after the stay in this case is lifted, he may 12 || move for leave to amend. Any such motion must be accompanied by a copy of the proposed 13 || amended complaint. 14 Accordingly, IT IS HEREBY ORDERED that plaintiffs motion for the appointment of 15 || counsel and for leave to amend the complaint (ECF No. 32) is DENIED without prejudice to 16 || renewal at a later stage. 17 | DATED: August 3, 2023 ~ Cttt0 Lhar—e_ 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28