Kirk v. Heinrich et al

Filing 76

ORDER signed by Magistrate Judge Edmund F. Brennan on 8/27/13 ORDERING that plaintiffs request for an extension of time (ECF No. 72 ) is DENIED as moot, and his request for appointment of counsel (ECF No. 71 ) is also DENIED.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LARRY W. KIRK,

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No. 2:11-cv-323-WBS-EFB P

Plaintiff,
v.

ORDER

HEINRICH,
Defendant.

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Plaintiff is a former state prisoner proceeding without counsel in an action brought under

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42 U.S.C. § 1983. He requests appointment of counsel and an extension of time. For the reasons

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stated at the August 21, 2012 status conference, plaintiff’s request for an extension of time is

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denied as moot, and his request for appointment of counsel is also denied.

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District courts lack authority to require counsel to represent indigent prisoners in section

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

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circumstances, the court may request an attorney to voluntarily to represent such a plaintiff. See

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28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v.

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Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional

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circumstances” exist, the court must consider the likelihood of success on the merits as well as the

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ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues

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involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Having considered those factors,

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the court finds there are no exceptional circumstances in this case.
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Accordingly, IT IS HEREBY ORDERED that plaintiff’s request for an extension of time

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(ECF No. 72) is denied as moot, and his request for appointment of counsel (ECF No. 71) is also

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denied.

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DATED: August 27, 2013.

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