Evans v. Sisto et al

Filing 217

ORDER signed by Magistrate Judge Allison Claire on 4/24/2017 DENYING 215 Motion to Appoint Counsel. (Henshaw, R)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES EVANS, 12 13 14 15 No. 2:09-cv-0292 TLN AC P Plaintiff, v. ORDER J. NUEHRING, et al., Defendants. 16 17 18 19 Plaintiff, a state prisoner proceeding pro se with a civil rights action, has requested appointment of counsel. ECF No. 215. The United States Supreme Court has ruled that district courts lack authority to require 20 counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 21 U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the 22 voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 23 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 24 The test for exceptional circumstances requires the court to evaluate the plaintiff’s 25 likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in 26 light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 27 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances 28 common to most prisoners, such as lack of legal education and limited law library access, do not 1 1 establish exceptional circumstances that would warrant a request for voluntary assistance of 2 counsel. 3 The court does not find the required exceptional circumstances in the present case. In the 4 court’s order filed April 6, 2017, the court found that the interests of justice no longer warranted 5 the continued appointment of any counsel, vacated the portion of an earlier order (ECF No. 199) 6 appointing new counsel for trial, and ordered that plaintiff shall represent himself pro se in this 7 action. ECF No. 214. In his present motion, plaintiff has not demonstrated any new exceptional 8 circumstances that now warrant appointment of counsel. Rather, the bulk of plaintiff’s motion 9 appears to concern the merits of plaintiff’s case against defendants. Plaintiff is reminded that he 10 will have an opportunity to prove his case at trial, which is set for July 17, 2017. At this time, the 11 court sees no reason to depart from the court’s order filed April 6, 2017, and adopts the reasoning 12 set forth therein. Plaintiff’s request for the appointment of counsel will therefore be denied. 13 Accordingly, IT IS HEREBY ORDERED that plaintiff’s request for the appointment of 14 counsel (ECF No. 215) is denied. 15 DATED: April 24, 2017 16 17 18 19 20 21 22 23 24 25 26 27 28 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?