Dearwester v. Sacramento County Sheriff's Department

Filing 80

ORDER signed by Magistrate Judge Deborah Barnes on 5/25/2017 DENYING 79 Motion to Appoint Counsel. (Henshaw, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FRANK LEE DEARWESTER, 12 13 14 15 16 No. 2:13-cv-2064 MCE DB P Plaintiff, v. ORDER SACRAMENTO COUNTY SHERIFF’S DEPARTMENT, Defendant. 17 Plaintiff, a state prisoner proceeding pro se with a civil rights action, has requested 18 appointment of counsel. Plaintiff contends he requires the appointment of counsel because he 19 suffers several psychiatric disorders, he is uneducated in the law, and the prison law library is 20 inaccessible and inadequate. 21 The United States Supreme Court has ruled that district courts lack authority to require 22 counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 23 U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the 24 voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 25 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 26 The test for exceptional circumstances requires the court to evaluate the plaintiff’s 27 likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in 28 1 1 light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 2 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances 3 common to most prisoners, such as lack of legal education and limited law library access, do not 4 establish exceptional circumstances that would warrant a request for voluntary assistance of 5 counsel. In the present case, the court does not find the required exceptional circumstances. 6 The court is concerned, however, about plaintiff’s assertion that the prison law library is 7 inaccessible and inadequate. While these assertions do not form a basis for the appointment of 8 counsel, plaintiff should inform the court, with specificity, if he is not receiving access to the 9 library and explain why it is inadequate. 10 Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for the appointment of 11 counsel (ECF No. 79) is denied. 12 Dated: May 25, 2017 13 14 15 16 17 18 19 20 21 22 23 DLB:9 DLB1/prisoner-civil rights/dear2064.31 24 25 26 27 28 2

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