Franklin v. Foulk

Filing 111

ORDER signed by Magistrate Judge Deborah Barnes on 2/7/2018 DENYING as moot plaintiff's 109 motion for an extension of time to file objections and DENYING without prejudice plaintiff's 97 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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JOHNNY L. FRANKLIN,

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No. 2:14-cv-0057 KJM 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 is a state prisoner proceeding in pro se and in forma pauperis in an action

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pursuant to 42 U.S.C. § 1983. Presently before the court is plaintiff’s motion for an extension of

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time to file objections to the courts findings and recommendations (ECF No. 108) and plaintiff’s

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motion to appoint counsel (ECF No. 97).

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I.

Motion for an Extension of Time
Plaintiff requested an extension of time to file objections to the court’s December 12,

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2017, findings and recommendations. (ECF NO. 109.) Before the court ruled on his motion for

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an extension of time, plaintiff filed objections to the court’s findings and recommendations.

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(ECF No. 110.) Accordingly, the court will deny as moot plaintiff’s motion for an extension of

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time to file objections.

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II.

Motion to Appoint Counsel
Plaintiff requests that the court appoint counsel. (ECF No. 97.) In support of his motion

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to appoint counsel plaintiff argues he is incarcerated, lacks income to employ counsel, has limited

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access to the law library, and has no legal education.

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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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The court finds that plaintiff has not established the existence of exceptional

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circumstances that would warrant the appointment of counsel because he has failed to allege facts

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showing anything more than circumstances common to most prisoners.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for an extension of time to file objections (ECF No. 109) is denied as

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moot; and

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2. Plaintiff’s motion for the appointment of counsel (ECF No. 97) is denied without

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prejudice.

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Dated: February 7, 2018

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DLB12
DLB1/Orders/ Prisoner-civil rights/fran0057.eot4obj.31

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