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)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMES EVANS,

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No. 2:09-cv-0292 TLN AC P
Plaintiff,

v.

ORDER

J. NUEHRING, et al.,
Defendants.

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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

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counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490

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U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the

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voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d

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1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

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The test for exceptional circumstances requires the court to evaluate the plaintiff’s

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likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in

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light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328,

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1331 (9th Cir. 1986); 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.

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The court does not find the required exceptional circumstances in the present case. In the

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court’s order filed April 6, 2017, the court found that the interests of justice no longer warranted

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the continued appointment of any counsel, vacated the portion of an earlier order (ECF No. 199)

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appointing new counsel for trial, and ordered that plaintiff shall represent himself pro se in this

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action. ECF No. 214. In his present motion, plaintiff has not demonstrated any new exceptional

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circumstances that now warrant appointment of counsel. Rather, the bulk of plaintiff’s motion

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appears to concern the merits of plaintiff’s case against defendants. Plaintiff is reminded that he

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will have an opportunity to prove his case at trial, which is set for July 17, 2017. At this time, the

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court sees no reason to depart from the court’s order filed April 6, 2017, and adopts the reasoning

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set forth therein. Plaintiff’s request for the appointment of counsel will therefore be denied.

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

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counsel (ECF No. 215) is denied.

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DATED: April 24, 2017

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