Byrd v. Lynn et al

Filing 66

ORDER signed by Magistrate Judge Dale A. Drozd on 04/16/13 denying Motions to Appoint Counsel 64 , 65 . (Plummer, M) Modified on 4/17/2013 (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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HOSEA BYRD,
Plaintiff,

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ORDER

vs.

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No. 2:10-cv-0839 KJM DAD P

Defendant.

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A. LYNN,

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/
Plaintiff, a state prisoner proceeding pro se with a civil rights action, has
requested appointment of counsel.
As the court previously advised plaintiff, the United States Supreme Court has

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ruled that district courts lack authority to require counsel to represent indigent prisoners in

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

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exceptional circumstances, the district court may request the voluntary assistance of counsel

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pursuant to 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).

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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.
Accordingly, IT IS HEREBY ORDERED that plaintiff’s motions for appointment

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of counsel (Doc. Nos. 64 & 65) are denied.

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DATED: April 16, 2013.

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DAD:mp
byrd0839.31(2)

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