McNeal v. Evert, et al

Filing 318

ORDER signed by Magistrate Judge Edmund F. Brennan on 12/11/2017 DENYING 315 Motion to Appoint Counsel. (York, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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VERNON WAYNE McNEAL,

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Plaintiff,

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No. 2:05-cv-0441-GEB-EFB P

v.

ORDER

EVERT, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. He requests that the court appoint counsel. District courts lack authority to

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require counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States

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Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an

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attorney to voluntarily to represent such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v.

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Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th

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Cir. 1990). When determining whether “exceptional circumstances” exist, the court must

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consider the likelihood of success on the merits as well as the ability of the plaintiff to articulate

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his claims pro se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560

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F.3d 965, 970 (9th Cir. 2009). Having considered those factors, the court finds there are no

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exceptional circumstances in this case.

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Plaintiff indicates in his motion that he desires counsel so that the attorney could gather

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evidence to be used at trial. ECF No. 315. The time for plaintiff to marshal evidence in support

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of his claims – i.e., the discovery period – has passed. ECF No. 101.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s November 28, 2017 motion for

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appointment of counsel (ECF No. 315) is denied.

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DATED: December 11, 2017.

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