Penton v. Hubard et al

Filing 39

ORDER denying 34 Motion to Appoint Counsel signed by Magistrate Judge Kendall J. Newman on 09/10/12. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANTHONY PENTON,

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Plaintiff,

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No. 2:11-cv-0518 GEB KJN P

vs.
K. DICKINSON, et al.,
Defendants.

ORDER
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Plaintiff is a state prisoner proceeding without counsel or “pro se” in an action

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brought under 42 U.S.C. § 1983. Plaintiff requests that the court appoint counsel. District courts

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lack authority to require counsel to represent indigent prisoners in section 1983 cases. Mallard v.

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United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court

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may request an attorney to voluntarily to represent such a plaintiff. See 28 U.S.C. § 1915(e)(1);

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Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332,

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1335-36 (9th Cir. 1990). When determining whether “exceptional circumstances” exist, the

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court must consider plaintiff’s likelihood of success on the merits as well as the ability of the

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

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Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not abuse discretion in

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declining to appoint counsel). The burden of demonstrating exceptional circumstances is on the
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plaintiff. Id. Circumstances common to most prisoners, such as lack of legal education and

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limited law library access, do not establish exceptional circumstances that warrant a request for

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voluntary assistance of counsel.
Having considered the factors under Palmer, the court finds that plaintiff failed to

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meet his burden of demonstrating exceptional circumstances warranting the appointment of

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counsel at this time.
Accordingly, IT IS HEREBY ORDERED that plaintiff’s July 13, 2012 request for

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the appointment of counsel (dkt. no. 34) is denied.

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DATED: September 10, 2012

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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pent0518.31

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