Jimenez v. Horel
ORDER signed by Magistrate Judge Kendall J. Newman on 1/12/17 ORDERING that plaintiff's request to add evidence (ECF No. 113 ) is DENIED without prejudice; and plaintiff's motion for the appointment of counsel (ECF No. 114 ) is DENIED without prejudice.(Dillon, M)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
ROBERT C. JIMENEZ,
No. 2:10-cv-2943 KJM KJN P
J. WHITFIELD, et al.,
Plaintiff is a state prisoner, proceeding pro se, in an action brought under 42 U.S.C. §
1983. Plaintiff filed two requests: a request to add evidence, and a request that the court appoint
In his request to add evidence, plaintiff asks the court to consider exhibits appended to his
request. However, at present, plaintiff is not required to present evidence in support of the merits
of his underlying claims. Therefore, plaintiff’s request is denied as premature.
In light of the findings and recommendations issued herewith, the court finds it
inappropriate to appoint counsel at this time. District courts lack authority to require counsel to
represent indigent prisoners in section 1983 cases. Mallard v. United States Dist. Court, 490 U.S.
296, 298 (1989). In exceptional circumstances, the court may request an attorney to voluntarily
represent such a plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017
(9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When
determining whether “exceptional circumstances” exist, the court must consider plaintiff’s
likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro
se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970
(9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel). The
burden of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances
common to most prisoners, such as lack of legal education and limited law library access, do not
establish exceptional circumstances that warrant a request for voluntary assistance of counsel.
Having considered the factors under Palmer, the court finds that plaintiff has failed to
meet his burden of demonstrating exceptional circumstances warranting the appointment of
counsel at this time.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff’s request to add evidence (ECF No. 113) is denied without prejudice; and
2. Plaintiff’s motion for the appointment of counsel (ECF No. 114) is denied without
Dated: January 12, 2017
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?