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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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FRANK LEE DEARWESTER,

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No. 2:13-cv-2064 MCE DB P

Plaintiff,
v.

ORDER

SACRAMENTO COUNTY SHERIFF’S
DEPARTMENT,
Defendant.

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Plaintiff, a state prisoner proceeding pro se with a civil rights action, has requested
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appointment of counsel. Plaintiff contends he requires the appointment of counsel because he
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suffers several psychiatric disorders, he is uneducated in the law, and the prison law library is
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inaccessible and inadequate.
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The United States Supreme Court has ruled that district courts lack authority to require
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counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490
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U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the
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voluntary assistance of counsel pursuant to 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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The test for exceptional circumstances requires the court to evaluate the plaintiff’s

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likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in
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light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328,

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1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). 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 would warrant a request for voluntary assistance of

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counsel. In the present case, the court does not find the required exceptional circumstances.

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The court is concerned, however, about plaintiff’s assertion that the prison law library is

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inaccessible and inadequate. While these assertions do not form a basis for the appointment of

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counsel, plaintiff should inform the court, with specificity, if he is not receiving access to the

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library and explain why it is inadequate.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for the appointment of

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counsel (ECF No. 79) is denied.

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Dated: May 25, 2017

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DLB:9
DLB1/prisoner-civil rights/dear2064.31

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