Howard v. Virga et al

Filing 21

ORDER signed by Magistrate Judge Kendall J. Newman on 2/4/14 GRANTING 19 Motion for Extension of time. Plaintiff is granted thirty days from the date of this order in which to file a second amended complaint. No further extensions of time will be granted. Plaintiff's 20 Motion to Appoint Counsel is DENIED without prejudice. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GREGORY E. HOWARD,

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Plaintiff,

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v.

No. 2:13-cv-1523 KJN P

ORDER

TIM VIRGA, et al.,
Defendants.

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Plaintiff has filed his second request for an extension of time to file a second amended

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complaint pursuant to the court’s order of November 20, 2013. Good cause appearing, the

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request will be granted. No further extensions of time will be granted.

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Plaintiff also requests that the court appoint counsel. District courts lack authority to

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

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Dist. 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.

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Because plaintiff has not filed a second amended complaint, the court cannot determine
whether plaintiff’s claims have merit.
Having considered the factors under Palmer, the court finds that plaintiff has failed to

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meet his burden of demonstrating exceptional circumstances warranting the appointment of

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counsel at this time.

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IT IS HEREBY ORDERED that:

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1. Plaintiff’s request for an extension of time (ECF No. 19) is granted.

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2. Plaintiff is granted thirty days from the date of this order in which to file a second

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amended complaint. No further extensions of time will be granted.
3. Plaintiff’s motion for the appointment of counsel (ECF No. 20) is denied without

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prejudice.

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Dated: February 4, 2014

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