(PC) McCarary v. CDCR et al, No. 2:2017cv01944 - Document 21 (E.D. Cal. 2018)

Court Description: ORDER signed by Magistrate Judge Kendall J. Newman on 3/22/2018 GRANTING plaintiff 30 days to file objections to the 2/21/2018 findings and recommendations; and DENYING without prejudice plaintiff's 20 motion for the appointment of counsel. (Yin, K)
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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 McCRARY, 12 Plaintiff, 13 14 No. 2:17-cv-1944 KJM KJN P v. ORDER SCOTT KERNAN, et al., 15 Defendants. 16 Plaintiff is a state prisoner, proceeding pro se, in an action brought under 42 U.S.C. 17 18 § 1983. On February 21, 2018, the undersigned recommended that this action be dismissed. 19 (ECF No. 15.) 20 On March 2, 2018, plaintiff filed a pleading titled “objections to the findings and 21 recommendations.” (ECF No. 16.) In these objections, plaintiff states that he cannot access the 22 law library because the prison is on lockdown. (Id.) Plaintiff states that due to the lockdown, he 23 cannot meet the 14 day deadline to file objections. (Id.) On March 5, 2018, plaintiff filed a letter 24 with the court stating that the prison is on lockdown. (ECF No. 17.) Plaintiff states that he 25 cannot access the law library. (Id.) Good cause appearing, plaintiff is granted thirty days from the date of this order to file 26 27 objections to the February 21, 2018 findings and recommendations. 28 //// 1 1 On March 8, 2018, plaintiff also filed a motion for appointment of counsel. District courts 2 lack authority to require counsel to represent indigent prisoners in section 1983 cases. Mallard v. 3 United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may 4 request an attorney to voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell 5 v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 6 (9th Cir. 1990). When determining whether “exceptional circumstances” exist, the court must 7 consider plaintiff’s likelihood of success on the merits as well as the ability of the plaintiff to 8 articulate his claims pro se in light of the complexity of the legal issues involved. Palmer v. 9 Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not abuse discretion in declining to 10 appoint counsel). The burden of demonstrating exceptional circumstances is on the plaintiff. Id. 11 Circumstances common to most prisoners, such as lack of legal education and limited law library 12 access, do not establish exceptional circumstances that warrant a request for voluntary assistance 13 of counsel. 14 Having considered the factors under Palmer, the court finds that plaintiff has failed to 15 meet his burden of demonstrating exceptional circumstances warranting the appointment of 16 counsel at this time. 17 Accordingly, IT IS HEREBY ORDERED that: 18 1. Plaintiff is granted thirty days from the date of this order to file objections to the 19 20 February 21, 2018 findings and recommendations; and 2. Plaintiff’s motion for the appointment of counsel (ECF No. 20) is denied without 21 prejudice. 22 Dated: March 22, 2018 23 24 25 26 mcca1944.31 27 28 2