Farley v. Virga et al

Filing 23

ORDER signed by Magistrate Judge Kendall J. Newman on 2/10/2014 GRANTING plaintiff 30 days to submit the copies of the complaint necessary for service; and plaintiff's 21 motion for the appointment of counsel is DENIED without predjudice. (Yin, K)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

WILLIAM D. FARLEY,

12

No. 2:13-cv-1751 KJN P

Plaintiff,

13

v.

14

T. VIRGA, et al.,

15

ORDER

Defendants.

16
17

Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant

18

to 42 U.S.C. § 1983. On January 9, 2014, the court found that plaintiff’s amended complaint

19

stated a colorable claim for relief as to defendants Virga, Delaney, May, Higgins, Gonzales,

20

Scoggins, Meirs, Hamkar, Curren and Stewart. Plaintiff was directed to return the following

21

forms within thirty days necessary to effect service: one summons, ten USM-185 forms and

22

eleven copies of the amended complaint.

23

On February 4, 2014 plaintiff submitted the summons and USM-285 forms. Plaintiff

24

requests an extension of time to submit the copies of the complaints on grounds that he has not

25

had adequate law library access. Good cause appearing, this request is granted.

26

Plaintiff has also filed a motion for the appointment of counsel. District courts lack

27

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

28

United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may
1

1

request an attorney to voluntarily to represent such a plaintiff. See 28 U.S.C. § 1915(e)(1).

2

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

3

1335-36 (9th Cir. 1990). When determining whether “exceptional circumstances” exist, the court

4

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

5

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

6

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

7

appoint counsel). The burden of demonstrating exceptional circumstances is on the plaintiff. Id.

8

Circumstances common to most prisoners, such as lack of legal education and limited law library

9

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

10
11

of counsel.
Having considered the factors under Palmer, the court finds that plaintiff has failed to

12

meet his burden of demonstrating exceptional circumstances warranting the appointment of

13

counsel at this time. It is too early in this action to determine that appointment of counsel is

14

warranted.

15

In a separate letter, plaintiff requests that the court appoint attorney Mario Desolenni to

16

represent him in this action. While the court denies plaintiff’s request for counsel at this time,

17

plaintiff may, on his own, seek representation by attorney Desolenni.

18

Accordingly, IT IS HEREBY ORDERED that:

19

1.

20
21

service; and
2. Plaintiff’s motion for the appointment of counsel (ECF No. 21) is denied without

22
23

Plaintiff is granted thirty days to submit the copies of the complaint necessary for

prejudice.
Dated: February 10, 2014

24
25

farl1751.31kjn

26
27
28
2