Robinson v. Jaksch et al

Filing 32

ORDER denying 27 Motion to Appoint Counsel signed by Magistrate Judge Kendall J. Newman on 04/01/13. (Plummer, 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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ROOSEVELT J. ROBINSON,
Plaintiff,

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vs.

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No. 2:12-cv-1992 MCE KJN P

J. JAKSCH, et al.,

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Defendants.

ORDER
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Plaintiff is a Solano County Jail detainee, proceeding without counsel or “pro se,”
in an action brought under 42 U.S.C. § 1983. Plaintiff requests that the court appoint counsel.
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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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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In the present case, plaintiff notes that the Solano County Jail has no law library,

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and that requests for legal materials must be made to “Legal Research Associates” (“LRA”), an

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organization that contracts with Solano County to provide legal services to its jail detainees.

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Plaintiff states that the materials available through LRA, and the services they provide, are

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limited; moreover, detainees may make only five requests per week. Plaintiff states that he has

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attempted without success to obtain counsel, that he has a limited understanding of the rules of

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civil procedure,1 and that, at trial, counsel would be better able to present plaintiff’s evidence and

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cross-examine witnesses.
Plaintiff’s reasons for requesting appointment of counsel are not dissimilar to

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those asserted by most prisoners. In addition, plaintiff has demonstrated, to date, the ability to

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articulate the legal issues in this case and to pursue discovery. It is not clear that this case will

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proceed to trial; few prisoner cases proceed to trial, and many prisoner civil rights cases are

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resolved in the plaintiff’s favor without trial.
Therefore, having considered the factors under Palmer, the court finds that

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plaintiff has failed to meet his burden of demonstrating exceptional circumstances warranting the

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appointment of counsel at this time.
Accordingly, IT IS HEREBY ORDERED that plaintiff’s February 22, 2013

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motion for the appointment of counsel (Docket No. 27), is denied without prejudice.

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DATED: April 1, 2013
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KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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robi1992.31kjn

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Plaintiff is informed that the pertinent rules are set forth in the Federal Rules of Civil
Procedure and the Local Rules of this court, not state statutes and rules.
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