United States District Court, E.D. California
JASPER F. WILSON, Plaintiff,
JEFFREY A. BEARD, et al., Defendants.
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE.
a state prisoner proceeding pro se and in forma pauperis, has
filed this civil rights action seeking relief under 42 U.S.C.
§ 1983. The matter was referred to a United States
Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B)
and Local Rule 302.
the court are plaintiff's motions for the temporary
appointment of counsel and for a sixty-day extension of time
to file an opposition to defendants' motion for
sanctions. ECF Nos. 57, 58. For the reasons stated below, the
court will deny plaintiff's motion for the temporary
appointment of counsel, and it grant an extension of time to
file an opposition to defendants' motion for sanctions.
PLAINTIFF'S MOTION TO APPOINT COUNSEL
November 1, 2019, plaintiff filed a motion for the temporary
appointment of counsel. ECF No. 57. In support of the motion,
plaintiff states: (1) he is unable to afford counsel; (2) his
imprisonment will greatly limit his ability to litigate this
action; (3) opposing defendants' motion for sanctions
will require significant research and investigation; (4) he
has very limited access to the prison law library; (5) only
temporary counsel may be able to establish the authenticity
and/or lack thereof of proffered declarations and/or evidence
of all parties; (6) appointed counsel would be better
equipped to conduct a trial; and (7) appointed counsel could
assist him with establishing the truth regarding his
allegations that some witnesses have perjured themselves.
See id. at 1-5. Defendants oppose plaintiff's
request. See ECF No. 61.
United States Supreme Court has ruled that district courts
lack authority to require counsel to represent indigent
prisoners in § 1983 cases. Mallard v. United States
Dist. Court, 490 U.S. 296, 298 (1989). In certain
exceptional circumstances, the district court may request the
voluntary assistance of counsel pursuant to 28 U.S.C. §
1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017
(9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332,
1335-36 (9th Cir. 1990).
test for exceptional circumstances requires the court to
evaluate the plaintiff's likelihood of success on the
merits and the ability of the plaintiff to articulate his
claims pro se in light of the complexity of the legal issues
involved. See Wilborn v. Escalderon, 789 F.2d 1328,
1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d
952, 954 (9th Cir. 1983). Circumstances common to most
prisoners, such as lack of legal education and limited law
library access, do not establish exceptional circumstances
that would warrant a request for voluntary assistance of
counsel. In the present case, the court does not find the
required exceptional circumstances.
matter has been on the court's docket since July 2015.
See ECF No. 1. To date, plaintiff has managed to
litigate it adequately without assistance from appointed
counsel. Plaintiff readily admits this. See ECF No.
57 at 5 (plaintiff stating he is “competent enough to
present his own case and has done so up and until the
defendants' notice of motion and motion for sanctions . .
. was served.”). Moreover, the fact that this action
has survived defendants' motion to dismiss (see
ECF Nos. 20, 41, 45) further supports plaintiff's ability
to litigate this action satisfactorily, and it also indicates
that success on the action's merits is within the realm
of possibilities. See generally Wilborn, 789 F.2d at
1331; Weygandt, 718 F.2d at 954. For these reasons,
plaintiff's motion for the appointment of temporary
counsel will be denied.
PLAINTIFF'S MOTION FOR AN EXTENSION OF TIME
November 1, 2019, plaintiff also filed a motion for a
sixty-day extension of time, up to and including January 8,
2020, to file an opposition to defendants' motion for
sanctions. See ECF No. 58 at 5. Defendants do not
oppose this request. See ECF No. 60 at 3 n.2. The
court will grant plaintiffs motion for an extension of time.
IT IS HEREBY ORDERED that:
Plaintiff s motion for the temporary appointment of counsel,
ECF No. 57, is DENIED;
Plaintiffs motion for an extension of time to file an
opposition to defendants' motion for sanctions, ECF No.
58, is GRANTED; and
Plaintiffs opposition to the sanctions motion, ECF No. 59, is
now due January 8, 2020. In light of the generous amount of
time provided, no additional extensions of ...