Alkebu-Lan v. Dickinson

Filing 54

ORDER signed by Magistrate Judge Kendall J. Newman on 04/03/14 denying 52 Motion to Appoint Counsel. (Plummer, 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 this civil rights action brought pursuant

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to 42 U.S.C. § 1983. Plaintiff requests, for the second time, appointment of counsel. The court

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denied plaintiff‟s prior request, filed on February 21, 2014, by order filed February 28, 2014.

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(ECF Nos. 50, 51.)

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As this court previously explained, 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 granting a request for voluntary assistance of

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counsel.

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The court denied plaintiff‟s previous request for appointment of counsel on the ground

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that “[p]laintiff 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

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at 3.) [¶] 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.” (ECF No. 51 at 2.)

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Plaintiff now asserts that his instant request meets the “exceptional circumstances”

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threshold because his complaint states a prima facie claim; plaintiff has made a good faith attempt

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to retain counsel; he is indigent; and “plaintiff has an offer by the White House to provide him

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with the federal agency that can represent him and expedite proceedings without delay or

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hardship on the magistrate or district court judges.” (ECF No. 52 at 1-3.)

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Applying the factors identified in Palmer, 560 F.3d at 970, the court finds that plaintiff has

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again 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 second motion for appointment

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of counsel (ECF No. 52) is denied without prejudice.

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Dated: April 3, 2014

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alke0291.31.2d.kjn

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