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ALKEBU-LAN v. DICKINSON, 2:11-cv-0291 LKK KJN P. (2014)

Court: District Court, E.D. California Number: infdco20140404d91 Visitors: 5
Filed: Apr. 03, 2014
Latest Update: Apr. 03, 2014
Summary: ORDER KENDALL J. NEWMAN, Magistrate Judge. Plaintiff is a state prisoner, proceeding pro se, in this civil rights action brought pursuant to 42 U.S.C. 1983. Plaintiff requests, for the second time, appointment of counsel. The court denied plaintiff's prior request, filed on February 21, 2014, by order filed February 28, 2014. (ECF Nos. 50, 51.) As this court previously explained, district courts lack authority to require counsel to represent indigent prisoners in section 1983 cases. Malla
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ORDER

KENDALL J. NEWMAN, Magistrate Judge.

Plaintiff is a state prisoner, proceeding pro se, in this civil rights action brought pursuant to 42 U.S.C. § 1983. Plaintiff requests, for the second time, appointment of counsel. The court denied plaintiff's prior request, filed on February 21, 2014, by order filed February 28, 2014. (ECF Nos. 50, 51.)

As this court previously explained, district courts lack authority to require counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney to voluntarily represent such a plaintiff. See 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). When determining whether "exceptional circumstances" exist, the court must consider plaintiff's likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel). The burden of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such as lack of legal education and limited law library access, do not establish exceptional circumstances that warrant granting a request for voluntary assistance of counsel.

The court denied plaintiff's previous request for appointment of counsel on the ground that "[p]laintiff asserts no specific reasons in support of his request for appointment of counsel. Plaintiff merely attaches a form letter from the White House, dated July 13, 2009, which states that plaintiff is welcome to contact the President for `help with a Federal agency.' (ECF No. 50 at 3.) [¶] Because plaintiff's request fails to meet any of the Palmer factors, the court finds that plaintiff has failed to meet his burden of demonstrating exceptional circumstances warranting the appointment of counsel at this time." (ECF No. 51 at 2.)

Plaintiff now asserts that his instant request meets the "exceptional circumstances" threshold because his complaint states a prima facie claim; plaintiff has made a good faith attempt to retain counsel; he is indigent; and "plaintiff has an offer by the White House to provide him with the federal agency that can represent him and expedite proceedings without delay or hardship on the magistrate or district court judges." (ECF No. 52 at 1-3.)

Applying the factors identified in Palmer, 560 F.3d at 970, the court finds that plaintiff has again failed to meet his burden of demonstrating "exceptional circumstances" warranting the appointment of counsel at this time.

Accordingly, IT IS HEREBY ORDERED that plaintiff's second motion for appointment of counsel (ECF No. 52) is denied without prejudice.

Source:  Leagle

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