Henderson v. Lankford et al

Filing 11

ORDER denying 3 Motion to Appoint Counsel signed by Magistrate Judge Kendall J. Newman on 10/18/12. (Kaminski, H)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JEFFREY HENDERSON,
Plaintiff,

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No. 2:12-cv-2317 KJN P

vs.
R. LANKFORD, et al.,
Defendants.

ORDER
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Plaintiff is a state prisoner proceeding pro se in an action brought under 42 U.S.C.

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§ 1983. Plaintiff requests that the court appoint counsel. District courts lack authority to require

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counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist.

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Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an

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attorney to voluntarily to represent such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v.

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

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(9th Cir. 1990). When determining whether “exceptional circumstances” exist, the court must

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

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articulate his claims pro se in light of the complexity of the legal issues involved. Palmer v.

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Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not abuse discretion in declining to

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appoint counsel). The burden of demonstrating exceptional circumstances is on the plaintiff. Id.
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Circumstances common to most prisoners, such as lack of legal education and limited law library

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access, do not establish exceptional circumstances that warrant a request for voluntary assistance

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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.
Accordingly, IT IS HEREBY ORDERED that plaintiff’s September 10, 2012

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request for the appointment of counsel (dkt. no. 3) is denied.

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DATED: October 18, 2012

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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hend2317.31

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