Jimenez v. Horel

Filing 118

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)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT C. JIMENEZ,

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No. 2:10-cv-2943 KJM KJN P

Plaintiff,
v.

ORDER

J. WHITFIELD, et al.,

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Defendants.

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Plaintiff is a state prisoner, proceeding pro se, in an action brought under 42 U.S.C. §

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1983. Plaintiff filed two requests: a request to add evidence, and a request that the court appoint

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counsel.

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In his request to add evidence, plaintiff asks the court to consider exhibits appended to his

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request. However, at present, plaintiff is not required to present evidence in support of the merits

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of his underlying claims. Therefore, plaintiff’s request is denied as premature.

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In light of the findings and recommendations issued herewith, the court finds it

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inappropriate to appoint counsel at this time. District courts lack authority to require counsel to

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represent indigent prisoners in section 1983 cases. Mallard v. United States Dist. Court, 490 U.S.

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296, 298 (1989). In exceptional circumstances, the court may request an attorney to voluntarily

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represent such a plaintiff. See 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). When
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determining whether “exceptional circumstances” exist, the court must consider plaintiff’s

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likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro

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se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970

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(9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel). The

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burden of demonstrating exceptional circumstances is on the plaintiff. Id. 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 warrant a request for voluntary assistance of counsel.

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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.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request to add evidence (ECF No. 113) is denied without prejudice; and

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2. Plaintiff’s motion for the appointment of counsel (ECF No. 114) is denied without

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prejudice.

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Dated: January 12, 2017

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jime2943.31

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