O'Keefe v. Cate

Filing 149

ORDER signed by Magistrate Judge Kendall J. Newman on 07/09/14 denying 146 Motion to Appoint Counsel. The clerk of the court is directed to serve a copy of plaintiff's 07/07/14 letter 145 on defendants. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TIMOTHY O’KEEFE,

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Plaintiff,

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No. 2:11-cv-2659 KJM KJN P

v.

ORDER

JERRY BROWN, et al.,

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

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to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist. Court, 490

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

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voluntarily to represent such a plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d

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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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Plaintiff has competently litigated this action. 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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On July 7, 2014, plaintiff filed a letter with the court stating that he has been put up for

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transfer to a different prison. (ECF No. 145.) In this letter, plaintiff states that this transfer will

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take him away from his family. Plaintiff states that he will have nothing to look forward to and

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that, “I feel like when I get to my new prison just giving up...meaning I’ll take my frustration out

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on myself in a physical way.”
The undersigned is concerned by the allegations in plaintiff’s July 7, 2014 letter set forth

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above. The defendants in this action include California Department of Corrections Director of

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Mental Health Timothy Belavich. The undersigned directs the Clerk of the Court to serve a copy

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of plaintiff’s July 7, 2014 letter on defendants. Having brought plaintiff’s letter to defendants’

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attention, the court anticipates that defendants will take appropriate action in response.

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Defendants are not required to file a response with the court.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

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prejudice;
2. The Clerk of the Court is directed to serve a copy of plaintiff’s July 7, 2014 letter

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Plaintiff’s motion for the appointment of counsel (ECF No. 146) is denied without

(ECF No. 145) on defendants.
Dated: July 9, 2014

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Okee2659.31

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