Lawrie v. Harris et al

Filing 9

ORDER signed by Magistrate Judge Edmund F. Brennan on 5/9/11 DENYING 5 Motion for attorneys fees; DENYING 7 Motion to Appoint Counsel. (Dillon, 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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MATHEW ALAN LAWRIE,

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Plaintiff,

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No. CIV S-11-0698 EFB P

vs.

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KAMALA HARRIS, et al.,

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Defendants.

ORDER
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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. He has requested that the court determine whether he is entitled to attorney fees

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under 42 U.S.C. § 1988 and appoint counsel. Dckt. Nos. 5, 7.

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I.

Motion for Appointment of Counsel

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

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

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exceptional circumstances, the court may request counsel voluntarily to represent such a

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

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v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). The court finds that there are no

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exceptional circumstances in this case.

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II.

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Attorney Fees under 42 U.S.C. § 1988
Section 1988 authorizes the court to award attorney fees in a civil rights action such as

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this to the prevailing party. As no merits determination has yet been made in this case (the court

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has not yet screened the complaint and no order has issued requiring service on any defendant),

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it would be premature at this stage to award attorney fees to plaintiff. More to the point, plaintiff

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is not entitled to attorney fees under § 1988, as he is appearing pro se. Elwood v. Drescher, 456

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F.3d 943, 946 (9th Cir. 2006) (citing Kay v. Ehrler, 499 U.S. 432, 437-38 (1991), for the

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proposition that “§ 1988 d[oes] not authorize the award of fees to pro se litigants”).

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III.

Order

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s April 27, 2011 request for appointment of counsel is denied.

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2. Plaintiff’s March 28, 2011 motion for attorney fees is denied.

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DATED: May 9, 2011.

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