Farley v. Virga et al

Filing 9

ORDER signed by Magistrate Judge Kendall J. Newman on 11/13/13 ORDERING that Plaintiffs motion for the appointment of counsel 8 is denied without prejudice; Plaintiffs motion for an extension of time 8 is granted; and Plaintiff is granted thirty days from the date of this order in which to file a complaint and to submit an application to proceed in forma pauperis.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WILLIAM D. FARLEY,

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No. 2:13-cv-1751 KJN P

Plaintiff,

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v.

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T. VIRGA, et al.,

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ORDER

Defendants.

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Plaintiff is a state prisoner proceeding pro se in an action brought under 42 U.S.C. § 1983.

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

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to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist. Court, 490

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

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voluntarily to represent such a plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d

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1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

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When determining whether “exceptional circumstances” exist, the court must consider plaintiff’s

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likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro

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se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970

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(9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel). The

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burden of demonstrating exceptional circumstances is on the plaintiff. Id. 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 warrant a request for voluntary assistance of counsel.
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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Plaintiff has also filed a motion for extension of time to file a complaint and to submit an
application to proceed in forma pauperis. Good cause appearing, this request is granted.

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Plaintiff also alleges that his legal property is being withheld and requests that the court

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order prison officials to return it to plaintiff. Plaintiff does not discuss why his legal property is

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being withheld or what attempts he has made to have it returned. Plaintiff also does not identify

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any prison official who has denied his request for the return of his legal property. Accordingly,

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plaintiff’s request for the court to order prison officials to return his legal property is denied

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without prejudice. A renewed request for the court to order prison officials to return plaintiff’s

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legal property must be well supported.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for the appointment of counsel (ECF No. 8) is denied without

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prejudice;

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2. Plaintiff’s motion for an extension of time (ECF No. 8) is granted; and

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

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and to submit an application to proceed in forma pauperis.

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Dated: November 13, 2013

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farl1751.31kjn+36

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