Bowen v. Cate et al

Filing 53

ORDER signed by Magistrate Judge Allison Claire on 10/28/14 DENYING 38 Motion to Appoint Counsel. (Dillon, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

BURCH MICHAEL BOWEN,

12
13
14
15

No. 2:12-cv-1519 MCE AC P

Plaintiff,
v.

ORDER

MATTHEW CATE, et al.,
Defendants.

16
17
18
19

Plaintiff, a state prisoner proceeding pro se with a civil rights action, has requested
appointment of counsel.
The United States Supreme Court has ruled that district courts lack authority to require

20

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

21

U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the

22

voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d

23

1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

24

The test for exceptional circumstances requires the court to evaluate the plaintiff’s

25

likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in

26

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

27

Cir. 2009) (district court did not abuse discretion in declining to appoint counsel); Wilborn v.

28

Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir.
1

1

1983). Circumstances common to most prisoners, such as lack of legal education and limited law

2

library access, do not establish exceptional circumstances that would warrant a request for

3

voluntary assistance of counsel.

4

Plaintiff was appointed counsel for the limited purpose of drafting and filing an amended,

5

and then a second amended, complaint. ECF Nos. 13, 17. That limited appointment expired with

6

the filing of the second amended complaint. See Order at ECF No. 24. The court does not find

7

that exceptional circumstances exist at this time to support further appointment of counsel.

8

Plaintiff’s request for the appointment of counsel will therefore be denied.

9

Accordingly, IT IS HEREBY ORDERED that plaintiff’s July 28, 2014 motion for the

10

appointment of counsel (ECF No. 38) is denied.

11

DATED: October 28, 2014

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2