James v. Fagan

Filing 47

ORDER signed by Magistrate Judge Edmund F. Brennan on 10/29/13 ordering that plaintiff's request for reconsideration of appointment of counsel and request for funding to further litigate his case 45 , 46 are denied. The court extends the filing deadline for plaintiff's pretrial statement. Plaintiff shall file the statement within 30 days. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CHARLES C. JAMES,

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No. 2:11-cv-1527-TLN-EFB P

Plaintiff,
v.

ORDER

FAGAN, et al.,
Defendants.

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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. On August 21, 2013, the court denied plaintiff’s request for appointment of

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counsel. Plaintiff has now filed two documents, ECF Nos. 45 & 46, seeking reconsideration of

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the denial and “clarifying” his request for limited appointment of counsel.

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As plaintiff was previously informed, 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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to 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 the likelihood of

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success on the merits as well as the ability of the plaintiff to articulate his claims pro se in light of

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the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009).
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Having once again considered those factors, the court still finds there are no exceptional

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circumstances in this case.

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Plaintiff also “seek[s] direct funding from the court to pay deposition cost[s] and

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associated fees to court and deponents.” ECF No. 46-2. The expenditure of public funds on

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behalf of an indigent litigant is proper only when authorized by Congress. Tedder v. Odel, 890

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F.2d 210 (9th Cir. 1989). The in forma pauperis statute does not authorize the expenditure of

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public funds for witness fees, deposition costs and the like. See 28 U.S.C. § 1915.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s request for reconsideration of

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appointment of counsel and request for funding to further litigate his case (ECF Nos. 45, 46) are

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denied. The court extends the filing deadline for plaintiff’s pretrial statement. Plaintiff shall file

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the statement within thirty days.

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DATED: October 29, 2013.

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