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)

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

Plaintiff,
v.

ORDER

JERRY BROWN, et al.,
Defendants.

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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

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1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional

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circumstances, the court may request an attorney to voluntarily represent such a plaintiff. See 28

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

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

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circumstances” exist, the court must consider plaintiff’s likelihood of success on the merits as

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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) (district court did not

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abuse discretion in declining to appoint counsel). The burden of demonstrating exceptional

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circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such as lack of
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legal education and limited law library access, do not establish exceptional circumstances that

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warrant a request for voluntary assistance of counsel.

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In the pending motion, plaintiff states that he recently received the court’s discovery

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order. Plaintiff states that he has no idea how to proceed with discovery. Plaintiff also states that

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he has mental health issues.

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

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meet his burden of demonstrating exceptional circumstances warranting the appointment of

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counsel at this time. Plaintiff has competently represented himself in this action. Plaintiff may

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consult the Federal Rule of Civil Procedure regarding discovery practice.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s May 21, 2015 motion for the

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appointment of counsel (ECF No. 210) is denied without prejudice.

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Dated: May 29, 2015

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okee2659.31.kjn

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