O'Keefe v. Cate

Filing 240

ORDER signed by Magistrate Judge Kendall J. Newman on 10/22/15 denying 238 Motion to Appoint Counsel and for law library access. (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 without counsel, with a civil rights action pursuant

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to 42 U.S.C. § 1983. Pending before the court is plaintiff’s motions for appointment of counsel

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and for law library access. (ECF No. 238.) For the following reason, this motion is denied.

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Plaintiff alleges that since his arrival at Salinas Valley State Prison (“SVSP”) on

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September 22, 2015, he has requested law library access, but not been called to the law library.

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Plaintiff alleges that the law library is seldom open and understaffed. Plaintiff signed his motion

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on October 6, 2015.

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The undersigned finds that plaintiff has not made an adequate showing that he is being

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denied law library access. At the time plaintiff signed his motion, he had only been at SVSP for

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fourteen days. Plaintiff does not state when he submitted his requests for law library access. For

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these reasons, plaintiff’s motion for law library access is denied without prejudice. If plaintiff

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refiles his motion, he must discuss when he submitted his requests and to whom they were made.
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Plaintiff must also describe any law library access he has been granted.
Plaintiff also requests that the court appoint counsel. District courts lack authority to

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

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

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1990). When determining whether “exceptional circumstances” exist, the court must consider

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

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

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965, 970 (9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel).

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The 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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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.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for the appointment of

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counsel and for law library access (ECF No. 238) is denied without prejudice.

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Dated: October 22, 2015

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Ok2659.ll(2)

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