Henderson v. Purcell et al

Filing 46

ORDER signed by Magistrate Judge Dale A. Drozd on 7/27/11 ORDERING that Plaintiff's MOTION for Appointment of Counsel 44 is DENIED. Plaintiff's MOTION for Objections 45 is DENIED without prejudice. (Mena-Sanchez, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANTOINE L. HENDERSON,
Plaintiff,

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vs.
K. PURCELL, et al.,
Defendants.

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ORDER
/

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No. CIV S-09-2779 LKK DAD P

Plaintiff, a state prisoner proceeding pro se with a civil rights action, has
requested appointment of counsel.

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The United States Supreme Court has ruled that district courts lack authority to

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

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Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may

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request the voluntary assistance of counsel pursuant to 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

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(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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Plaintiff has also filed a document styled “Motion for Objections.” Therein, he

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states “Plaintiff requests this court for order of ‘Objections to Magistrate Judge’s Finding and

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Recommendations.’ Dated on 7-12-11.” It is not clear why plaintiff has filed this motion or

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what type of relief plaintiff seeks from the court. Accordingly, the court will deny the motion

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without prejudice.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for appointment of counsel (Doc. No. 44) is denied; and

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2. Plaintiff’s “Motion for Objections” is (Doc. No. 45) denied without prejudice.

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DATED: July 27, 2011.

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DAD:9:md
hend2779.31+

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