Alkebu-Lan v. Dickinson

Filing 51

ORDER signed by Magistrate Judge Kendall J. Newman on 2/28/2014 DENYING plaintiff's 50 Motion for Appointment of Counsel. (Marciel, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SHAI ALKEBU-LAN,

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No. 2:11-cv-0291 LKK KJN P

Plaintiff,
v.

ORDER

K. DICKINSON, Warden, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se in an action brought under 42 U.S.C. § 1983.

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Currently pending is defendants’ motion for reconsideration of the district judge’s July 10, 2013

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order, which declined to adopt the undersigned magistrate judge’s findings and recommendations

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filed April 16, 2013, recommending that plaintiff’s in forma pauperis status be revoked pursuant

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to the “three strikes” rule set forth in 28 U.S.C. § 1915(g).

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Plaintiff now requests the appointment of counsel. District courts lack authority to require

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

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Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney

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to voluntarily to represent such a plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935

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F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

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When 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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Plaintiff asserts no specific reasons in support of his request for appointment of counsel.

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Plaintiff merely attaches a form letter from the White House, dated July 13, 2009, which states

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that plaintiff is welcome to contact the President for “help with a Federal agency.” (ECF No. 50 at

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3.)

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Because plaintiff’s request fails to meet any of the Palmer factors, the court finds that

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plaintiff has failed to meet his burden of demonstrating exceptional circumstances warranting the

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appointment of counsel at this time.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for the appointment of
counsel (ECF No. 50), is denied without prejudice.
SO ORDERED.
Dated: February 28, 2014

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alke0291.31

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