O'Keefe v. Cate

Filing 213

ORDER denying 210 Motion to Appoint Counsel signed by Magistrate Judge Kendall J. Newman on 05/29/15. (Plummer, M)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TIMOTHY O’KEEFE, 12 13 14 15 No. 2:11-cv-2659 KJM KJN P Plaintiff, v. ORDER JERRY BROWN, et al., Defendants. 16 17 18 19 Plaintiff is a state prisoner, proceeding pro se, in an action brought under 42 U.S.C. § 1983. Pending before the court is plaintiff’s third motion for the appointment of counsel. District courts lack authority to require counsel to represent indigent prisoners in section 20 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional 21 circumstances, the court may request an attorney to voluntarily represent such a plaintiff. See 28 22 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. 23 Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional 24 circumstances” exist, the court must consider plaintiff’s likelihood of success on the merits as 25 well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the 26 legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not 27 abuse discretion in declining to appoint counsel). The burden of demonstrating exceptional 28 circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such as lack of 1 1 legal education and limited law library access, do not establish exceptional circumstances that 2 warrant a request for voluntary assistance of counsel. 3 In the pending motion, plaintiff states that he recently received the court’s discovery 4 order. Plaintiff states that he has no idea how to proceed with discovery. Plaintiff also states that 5 he has mental health issues. 6 Having considered the factors under Palmer, the court finds that plaintiff has failed to 7 meet his burden of demonstrating exceptional circumstances warranting the appointment of 8 counsel at this time. Plaintiff has competently represented himself in this action. Plaintiff may 9 consult the Federal Rule of Civil Procedure regarding discovery practice. 10 Accordingly, IT IS HEREBY ORDERED that plaintiff’s May 21, 2015 motion for the 11 appointment of counsel (ECF No. 210) is denied without prejudice. 12 Dated: May 29, 2015 13 14 okee2659.31.kjn 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?