Hamilton v. Mule Creek State Prison, et al.

Filing 51

ORDER signed by Magistrate Judge Craig M. Kellison on 11/21/2017 DENYING 44 and 50 Motions for the Appointment of Counsel and DENYING 47 Request for Reconsideration. (Henshaw, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID HAMILTON,

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No. 2:13-CV-1143-MCE-CMK-P

Plaintiff,
vs.

ORDER

K. SUTTERFIELD, et al.,
Defendants.
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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to

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42 U.S.C. § 1983. Pending before the court are: (1) plaintiff’s motions for the appointment of

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counsel (Docs. 44 and 50); and (2) plaintiff’s “Request for Reconsideration” (Doc. 47).

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Plaintiff seeks the appointment of counsel. The United States Supreme Court has

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ruled that district courts lack authority to require counsel to represent indigent prisoners in

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

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exceptional circumstances, the court may request the voluntary assistance of counsel pursuant to

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28 U.S.C. § 1915(e)(1). See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v.

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Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). A finding of “exceptional

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circumstances” requires an evaluation of both the likelihood of success on the merits and the

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ability of the plaintiff to articulate his claims on his own in light of the complexity of the legal
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issues involved. See Terrell, 935 F.2d at 1017. Neither factor is dispositive and both must be

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viewed together before reaching a decision. See id.

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In the present case, the court does not at this time find the required exceptional

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circumstances. Plaintiff argues that appointment of counsel is warranted because: (1) he lacks

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legal training and education; (2) he is indigent; and (3) he has a likelihood of success on the

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merits of his claims. Plaintiff’s lack of funds and legal training are not exceptional

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circumstances but are common among plaintiffs in § 1983 prisoner civil rights cases. Moreover,

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plaintiff has demonstrated an ability throughout this litigation to articulate his claims on his own.

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Finally, while some of plaintiff’s claims have survived a motion to dismiss, the court cannot say

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at this stage of the proceedings whether plaintiff has any particular likelihood of success on the

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merits of those claims.

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In his “Request for Reconsideration,” plaintiff seeks review by a District Judge of

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what plaintiff identifies as a ruling “made. . .on 9-31-17.” A review of the docket reflects no

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orders issued on September 31, 2017. To the extent plaintiff is referencing the court’s September

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29, 2017, order, plaintiff’s motion will be denied because that order was issued by the District

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Judge following de novo review of the court’s September 8, 2017, findings and

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recommendations and objections thereto filed by plaintiff on September 25, 2017.

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Accordingly, IT IS HEREBY ORDERED that:

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Plaintiff’s motions for the appointment of counsel (Docs. 44 and 50) are

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Plaintiff’s “Request for Reconsideration” (Doc. 47) is denied.

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denied; and

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DATED: November 21, 2017
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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