Lasher v. Miranda et al

Filing 58

ORDER signed by Magistrate Judge Kendall J. Newman on 1/8/2013 DENYING, as moot, plaintiff's 57 motion for an extension of time; and DENYING plaintiff's 55 motion for the appointment of counsel. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GARY LASHER,

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Plaintiff,

No. 2:11-cv-2564 WBS KJN P

vs.
R. MIRANDA, et al.,
Defendants.

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

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under 42 U.S.C. § 1983. On December 26, 2012, plaintiff filed a motion for extension of time to

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file and serve an opposition to defendants’ November 19, 2012 motion for summary judgment.

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This filing was signed by plaintiff on December 7, 2012. However, on December 18, 2012,

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plaintiff’s “objection” to defendants’ motion for summary judgment was filed. This document

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was also signed by plaintiff on December 7, 2012.

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Pro se prisoner filings are dated from the date the prisoner delivers it to prison

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authorities. Houston v. Lack, 487 U.S. 266, 275-76 (1988). Thus, plaintiff’s December 18, 2012

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filing is timely, and no extension of time is required.

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Plaintiff also requests that the court appoint counsel. District courts lack authority

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to require counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States
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Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an

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

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Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36

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(9th Cir. 1990). When determining whether “exceptional circumstances” exist, the court must

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

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articulate his claims pro se in light of the complexity of the legal issues involved. Palmer v.

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

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appoint counsel). The burden of demonstrating exceptional circumstances is on the plaintiff. Id.

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Circumstances common to most prisoners, such as lack of legal education and limited law library

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access, do not establish exceptional circumstances that warrant a request for voluntary assistance

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of counsel.

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

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failed to meet his burden of demonstrating exceptional circumstances warranting the

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appointment of counsel at this time.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for an extension of time (dkt. no. 57) is denied as moot; and

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2. Plaintiff’s motion for the appointment of counsel (dkt. no. 55) is denied

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without prejudice.

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DATED: January 8, 2013

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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lash2564.36

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