Turner v. Dickinson et al

Filing 54

ORDER denying 51 Motion to Appoint Counsel and medical expert signed by Magistrate Judge Dale A. Drozd on 1/07/13. (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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NATHAN KEVIN TURNER,
Plaintiff,

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No. 2:09-cv-00632 GEB DAD P

vs.
KATHLINE DICKINSON, et al.,
Defendants.

ORDER
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Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to

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42 U.S.C. § 1983. Plaintiff has been granted leave to proceed with this action in forma pauperis

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pursuant to 28 U.S.C. § 1915.

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On December 28, 2012, plaintiff filed a request for appointment of both counsel

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and a medical expert to assist him in this action. The expenditure of public funds on behalf of an

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indigent litigant is proper only when authorized by Congress. Tedder v. Odel, 890 F.2d 210 (9th

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Cir. 1989). The in forma pauperis statute does not authorize the expenditure of public funds for

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medical experts. See 28 U.S.C. § 1915.

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As to plaintiff’s request for the appointment of counsel, the United States

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

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indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298
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(1989). In certain exceptional circumstances, the district court may request the voluntary

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assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017

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(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. In the present case, the court does not find the required exceptional circumstances.

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Accordingly, IT IS HEREBY ORDERED that plaintiff's December 28, 2012

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request for the appointment of both counsel and a medical expert (Doc. No. 51) is denied.

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DATED: January 7, 2013.

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DAD:4
turn632.31c

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