Lasher v. Miranda et al

Filing 67

ORDER signed by Magistrate Judge Kendall J. Newman on 8/9/13 DENYING 63 Motion to Appoint Counsel. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GARY LASHER,

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

v.

ORDER

R. MIRANDA, 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 2, 2013, the court granted in part and denied in part defendants’

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summary judgment motion. By separate order, this action will be scheduled for trial.

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

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counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist.

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Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney

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to voluntarily to represent such a plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935

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F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

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When determining whether “exceptional circumstances” exist, the court must consider plaintiff’s

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likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro

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se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970

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(9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel). The
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burden of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances

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common to most prisoners, such as lack of legal education and limited law library access, do not

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establish exceptional circumstances that warrant a request for voluntary assistance of counsel.

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The issue left for trial is whether the alleged delay in plaintiff’s shoulder surgery caused

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plaintiff to suffer pain and suffering. This issue is not particularly complicated. Plaintiff has

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represented himself competently in this action. Accordingly, having considered the factors under

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Palmer, the court finds that plaintiff has failed to meet his burden of demonstrating exceptional

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circumstances warranting the appointment of 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 is (ECF No. 63) denied without prejudice.

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Dated: August 9, 2013

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lash2564.31

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