Jenkins v. Lares, et al.

Filing 22

ORDER signed by Magistrate Judge Deborah Barnes on 5/22/17 ORDERING that Plaintiff's 3/31/17 Motion to Amend Evidence 20 is DISMISSED; and Plaintiff's 5/1/17 Request for the Appointment of Counsel 21 is DENIED. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT LEE JENKINS, Jr.,

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No. 2:13-cv-2273 DB P

Plaintiff,
v.

ORDER

LARES, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights

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action. Plaintiff alleges defendants violated his due process rights in connection with his

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placement in administrative segregation, retaliated against him for exercising his First

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Amendment rights, and used excessive force. Before the court are plaintiff’s “Motion to Amend

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Evidence” and request for appointment of counsel.

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First, plaintiff’s “Motion to Amend Evidence” seeks to add to his complaint evidence

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about an investigation into racial discrimination at High Desert State Prison. (ECF No. 20.)

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Plaintiff is advised that his complaint need not include all evidence necessary to prove his claims.

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As this case proceeds, plaintiff may be given the opportunity to support his claims with additional

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evidence. Accordingly, plaintiff’s “Motion to Amend Evidence” will be dismissed.

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Second, plaintiff seeks the appointment of counsel because he has many other cases
pending in this district that are keeping him busy and because his case is complex. The United
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States Supreme Court has ruled that district courts lack authority to require counsel to represent

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indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298

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(1989). In certain exceptional circumstances, the district court may request the voluntary

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assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017

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(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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Accordingly, IT IS HEREBY ORDERED as follows:

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1. Plaintiff’s March 31, 2017 Motion to Amend Evidence (ECF No. 20) is dismissed;

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and
2. Plaintiff’s May 1, 2017, request for the appointment of counsel (ECF No. 21) is
denied.
Dated: May 22, 2017

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DLB:9
DLB1/prisoner-civil rights/jenk2273.31

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