Whitaker v. Crane, et al.

Filing 19

ORDER signed by Magistrate Judge Dale A. Drozd on 11/21/13 granting 17 Motion for Extension of time. Plaintiff is granted 30 days from the date of this order to file an amended complaint. Plaintiff's motion for appointment of counsel 18 is denied. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSEPH WHITAKER,

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No. 2:13-cv-00505 KJM DAD P

Plaintiff,
v.

ORDER

CRANE, et al.,
Defendants.

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Plaintiff has requested an extension of time to file an amended complaint in keeping with
the court’s order of October 3, 2013. Good cause appearing, the request will be granted.

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Plaintiff has also filed a motion for the appointment of counsel. The United States

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Supreme Court has ruled that district courts lack authority to require counsel to represent indigent

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

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certain exceptional circumstances, the district court may request the voluntary assistance of

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counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.

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

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

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

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light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328,

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1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). 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 would warrant a request for voluntary assistance of

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counsel. In the present case, the court does not find the required exceptional circumstances.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s November 12, 2013 motion for an extension of time (ECF No. 17) is

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granted;
2. Plaintiff is granted thirty days from the date of this order in which to file an amended
complaint; and
3. Plaintiff’s November 19, 2013 motion for the appointment of counsel (ECF No. 18) is

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denied without prejudice.

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Dated: November 21, 2013

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DAD:mp/4
whit0505.36amc

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