Payne v. Martin et al

Filing 109

ORDER signed by Magistrate Judge Edmund F. Brennan on 04/13/16 denying 105 Motion for excusable neglect in which plaintiff seeks the appointment of counsel and "a reasonable amount of time to do research. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LEE’THIEL PAYNE,

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No. 2:11-cv-1970-TLN-EFB P

Plaintiff,
v.

ORDER

J. MARTIN, 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. In a motion titled, “motion for excusable neglect,” plaintiff seeks the appointment

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of counsel and “a reasonable amount of time to do research.” ECF No. 105.

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This matter is set for trial in July of 2016. ECF No. 92. It is not clear why plaintiff needs

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more time to research, or what he intends to research. As there are no applicable deadlines to

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extend, plaintiff’s request for more time is denied as unnecessary.

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Moreover, district courts lack authority to require counsel to represent indigent prisoners

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in 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 an attorney to voluntarily to represent such a

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

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

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“exceptional circumstances” exist, the court must consider the likelihood of success on the merits
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as 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). Having considered

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those factors, the court finds there are no exceptional circumstances in this case.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s “motion for excusable neglect”

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(ECF No. 105), in which plaintiff seeks the appointment of counsel and “a reasonable amount of

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time to do research,” is denied.

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DATED: April 13, 2016.

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