Woods v. Carey, et al

Filing 268

ORDER denying 264 Motion to Appoint Counsel signed by Magistrate Judge Gregory G. Hollows on 09/25/12. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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EARNEST CASSELL WOODS, II.,
Plaintiff,

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No. 2:04-cv-1225 LKK GGH P

vs.
TOM L. CAREY, et al.,
Defendants.

ORDER
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Plaintiff has requested the appointment of counsel. The United States Supreme

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Court has ruled that district courts lack authority to require counsel to represent indigent

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prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In

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certain exceptional circumstances, the court may request the voluntary assistance of counsel

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pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991);

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Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). In the present case, the court

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does not find the required exceptional circumstances. See, e.g., Doc. No. 261 at 3.

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As the docket in this indicates, plaintiff has gone to trial already against defendant

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Cervantes, a trial in which plaintiff succeeded in prevailing on his claim. Defendant Carey had

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been awarded summary judgment on the merits, and one claim against both defendants was

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dismissed for failure to exhaust. The Ninth Circuit reversed on these latter claims, but solely on
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account of the length of time that the Rand and Wyatt informational notices had been given prior

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to the filing of the motions in question, i.e., they were not contemporaneously given. Docket #

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260. These issues will now be revisited in motions accompanied with the required informational

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notice. The bases of the merits of the previous motions have been extensively, previously briefed

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and plaintiff is well aware of those bases. All plaintiff has to do herein is add material evidence

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to contradict the bases, assuming there is any material evidence to add. Counsel is not necessary

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for this task. If plaintiff’s case survives the renewed motions, the court will reconsider its denial

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of counsel.
Plaintiff’s motion for the appointment of counsel will therefore be denied.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s August 23, 2012 motion

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for the appointment of counsel (Docket No. 264) is denied.

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DATED: September 25, 2012

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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wood1225.31

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