Brown v. Brown

Filing 17

ORDER signed by Magistrate Judge Kendall J. Newman on 9/6/12 ORDERING that the July 16, 2012 findings and recommendations 14 are VACATED; Plaintiffs motion for appointment of counsel 15 is DENIED; and Plaintiff is granted 30 days from the date of this order to file an amended complaint. (Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DEXTER BROWN,
Plaintiff,

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No. 2:12-cv-0934 KJM KJN P

vs.
EDMUND G. BROWN, et al.,
Defendants.

ORDER
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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action

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pursuant to 42 U.S.C. § 1983. On June 6, 2012, the undersigned dismissed plaintiff’s complaint

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with thirty days to file an amended complaint, and recommended that plaintiff’s second and third

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claims be dismissed. Thirty days passed and plaintiff did not respond to the June 6, 2012 order

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and findings and recommendations. Accordingly, on July 16, 2012, the undersigned

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recommended that this action be dismissed.

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On July 23, 2012, plaintiff filed a request for appointment of counsel. The
caption of this request contains four case numbers, including the instant action.
District courts lack authority to require counsel to represent indigent prisoners in

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

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exceptional circumstances, the court may request an attorney to voluntarily to represent such a
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plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991);

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

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“exceptional circumstances” exist, the court must consider plaintiff’s likelihood of success on the

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merits as well as the ability of the plaintiff to articulate his claims pro se in light of the

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complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009)

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(district court did not abuse discretion in declining to appoint counsel). The burden of

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demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common to most

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prisoners, such as lack of legal education and limited law library access, do not establish

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exceptional circumstances that warrant a request for voluntary assistance of counsel.
Having considered the factors under Palmer, the court finds that plaintiff has

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failed to meet his burden of demonstrating exceptional circumstances warranting the

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appointment of counsel at this time.
However, because plaintiff demonstrates an interest in prosecuting this action, he

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will be granted an extension of time in which to file an amended complaint.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The July 16, 2012 findings and recommendations (dkt. no. 14) are vacated;

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2. Plaintiff’s motion for appointment of counsel (Dkt. No. 15) is denied; and

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3. Plaintiff is granted thirty days from the date of this order to file an amended

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complaint.

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DATED: September 6, 2012

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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brow0934.eot

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