Davenport v. Lee et al

Filing 75

ORDER signed by Magistrate Judge Edmund F. Brennan on 6/25/2012 ORDERING Plaintiff's 72 Motion to Appoint Counsel is DENIED; Plaintiff's 71 Request for Leave to Proceed IFP is DENIED as unnecessary. (Waggoner, D)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RONALD DAVENPORT,
Plaintiff,

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vs.

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No. 2:09-cv-3091 GEB EFB P

BEN LEE, et al.,

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Defendants.

ORDER
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Plaintiff is a state prisoner proceeding without counsel and in forma pauperis in an action

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brought under 42 U.S.C. § 1983. He requests that the court appoint counsel. He also requests

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leave to proceed in forma pauperis on appeal.

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District courts lack authority to require counsel to represent indigent prisoners in

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section 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In

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exceptional circumstances, the court may request an attorney to voluntarily to represent such a

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plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991);

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Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether

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“exceptional circumstances” exist, the court must consider the likelihood of success on the

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merits as well as the ability of the plaintiff to articulate his claims pro se in light of the

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complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009).
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Having considered those factors, the court finds there are no exceptional circumstances in this

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case.

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Appellate Procedure provides that “a party who has been permitted to proceed in an action in the

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district court in forma pauperis . . . may proceed on appeal in forma pauperis without further

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authorization unless . . . the district court shall certify that the appeal is not taken in good faith or

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shall find that the party is otherwise not entitled so to proceed . . . .” Fed. R. App. 24. This court

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has not certified that plaintiff's appeal is not taken in good faith or otherwise found that plaintiff

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is not entitled to proceed on appeal in forma pauperis. Therefore, plaintiff’s request for leave to

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proceed in forma pauperis on appeal is denied as unnecessary.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request for appointment of counsel, Dckt. No. 72, is denied.

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2. Plaintiff’s request for leave to proceed in forma pauperis, Dckt. No. 71, is denied as

As noted, plaintiff already proceeds in forma pauperis. Rule 24 of the Federal Rules of

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unnecessary.

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DATED: June 25, 2012.

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