Woods v. Carey, et al

Filing 325

ORDER signed by Magistrate Judge Allison Claire on 10/20/14 denying 324 Motion to Appoint Counsel, grand jury investigation and federal investigator appointment. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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EARNEST CASSELL WOODS, II,

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No. 2:04-cv-1225-MCE-AC-P

Plaintiff,
v.

ORDER

TOM L. CAREY, et al.,
Defendants.

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Plaintiff, a state prisoner proceeding pro se with a civil rights action, and who has filed an
application to proceed in forma pauperis, has requested appointment of counsel.
District courts may not require counsel to represent indigent prisoners in § 1983 cases.

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Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). However, where willing counsel

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is available, the district court “may request an attorney to represent any person unable to afford

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counsel.” 28 U.S.C. § 1915(e)(1); Agyeman v. Corrections Corp. of America, 390 F.3d 1101,

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1103 (9th Cir. 2004), cert. denied, 545 U.S. 1128 (2005).

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The district court may appoint such counsel where “exceptional circumstances” exist.

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Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009), cert. denied, 559 U.S. 906 (2010) (citing

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Agyeman, 390 F.3d at 1103). In determining whether or not exceptional circumstances exist, “a

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court must consider ‘the likelihood of success on the merits as well as the ability of the petitioner

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to articulate his claims pro se in light of the complexity of the legal issues involved.’” Palmer,
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560 F.3d at 970 (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). Circumstances

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common to most prisoners, such as lack of legal education and limited law library access, do not

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establish exceptional circumstances that would warrant a request for voluntary assistance of

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counsel. See, e.g., Guess v. Lopez, 2014 WL 1883875 at *5 (E.D. Cal. 2014) (Claire, M.J.). The

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court has read plaintiff’s does not find exceptional circumstances in this case, at this time.

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In the same motion, plaintiff also requests a grand jury investigation and the appointment

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of a federal investigator. However, plaintiff’s motion does not explain the legal authority for the

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court to grant either motion, nor does the unsworn factual narrative explain how such actions

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would be warranted in this case. Accordingly those requests will be denied at this time.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s request for the appointment of

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counsel, a grand jury investigation and appointment of a federal investigator (ECF No. 324) is

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DENIED.

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DATED: October 20, 2014

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