Craver v. Hasty et al

Filing 127

ORDER denying 124 Motion to Appoint Counsel signed by Magistrate Judge Kendall J. Newman on 11/07/14. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANDRE CRAVER,

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No. 2:11-cv-1344 TLN KJN P

Plaintiff,

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v.

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J. HASTY, et al.,

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ORDER

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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This action is set for jury trial before the Honorable Troy L. Nunley on September 28, 2015.

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Pending before the court is plaintiff’s October 29, 2014 motion for appointment of counsel.

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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 plaintiff’s likelihood of success on the merits as

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well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the

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legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not

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

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legal education and limited law library access, do not establish exceptional circumstances that

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warrant a request for voluntary assistance of counsel.

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Plaintiff requests appointment of counsel on grounds that he has mental health problems.

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Plaintiff alleges that on July 27, 2014 he attempted suicide. Plaintiff alleges that in September

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2014 his depression became overwhelming. Plaintiff alleges that his mental health treatment care

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was upgraded to Extended Outpatient Treatment.

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The undersigned is sympathetic to plaintiff’s mental health problems. However, the trial
in this action is approximately eleven months away. The present record demonstrates that

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plaintiff has adequate time to prepare for trial, taking into consideration plaintiff’s mental health

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problems. The undersigned also observes that plaintiff was able to file several pleadings with the

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court following his alleged suicide attempt.

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Having considered the factors under Palmer, the court finds that plaintiff has 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.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for the appointment of

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counsel (ECF No. 124) is denied without prejudice.

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Dated: November 7, 2014

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crav1344.31kjn

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