Burton v. Foulk et al

Filing 60

ORDER signed by Magistrate Judge Deborah Barnes on 1/31/2020 DENYING plaintiff's 59 motion for the appointment of counsel. (Yin, K)

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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 JAM 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 to represent him at trial. (ECF No. 59). In support of the motion,

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plaintiff states that the issues in this case are complex, and his imprisonment will greatly limit his

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ability to litigate this matter. See id. at 1. He asks that the court appoint one Brian K. Wanerman

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to represent him. See id. at 2.

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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.

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This matter has been on the court’s docket since 2013. Thus far, plaintiff has adequately

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represented himself without the assistance of counsel. For this reason, the court does not find the

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required exceptional circumstances.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for the appointment of
counsel (ECF No. 59) is DENIED.
Dated: January 31, 2020

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DLB:13
DB/ORDERS/ORDERS.PRISONER.CIVIL RIGHTS/burt2123.31(4)

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