Burton v. Foulk et al

Filing 21

ORDER signed by Magistrate Judge Deborah Barnes on 12/8/2017. DENYING 20 Motion to Appoint Counsel. (York, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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HARRISON BURTON,

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No. 2:13-cv-2123 DB P

Plaintiff,

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v.

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F. FOULK, et al.,

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ORDER

Defendants.

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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, stating that he is mentally impaired. (ECF No. 20). This is plaintiff’s

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second request.

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Plaintiff’s first request for appointment of counsel was filed on October 15, 2013. (ECF

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No. 3). At that time, the court denied the request without prejudice, noting that the United States

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Supreme Court has ruled that district courts lack authority to require counsel to represent indigent

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prisoners in § 1983 cases, and finding that the required exceptional circumstances necessary to

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support the appointment of counsel did not exist. (See ECF No. 6).

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As stated at that time, in certain exceptional circumstances, the district court may request

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the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935

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F.2d 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.

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Plaintiff’s current request for the appointment of counsel provides little more in support of

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it than his October 2013 request provided. The only marked difference between the two motions

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is that plaintiff currently states that he is mentally impaired, and that as a result, he is unable to do

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legal work on his own. (See ECF No. 20 at 2).

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Despite plaintiff’s mental health claims, the court notes that for the past four years,

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plaintiff has been able to manage his case adequately without the assistance of counsel.

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Specifically, plaintiff has submitted two amended complaints articulating his claims clearly

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enough for some of them to survive statutory screening. (see ECF Nos. 11, 15). Plaintiff

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comprehends his obligations in this matter clearly enough to understand the need for and then

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request extensions of time to file the requisite documents in this case (see ECF Nos. 9, 13).

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Given these facts, the court does not find the required exceptional circumstances.

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

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counsel (ECF No. 20) is denied.

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Dated: December 8, 2017

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DLB:13
DB/ORDERS/ORDERS.PRISONER.CIVIL RIGHTS/burt2123.31.db.ac

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