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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOHNNY L. FRANKLIN, 12 No. 2:14-cv-0057 KJM DB P Plaintiff, 13 v. 14 F. FOULK, et al., 15 ORDER Defendants. 16 17 Plaintiff is a state prisoner proceeding in pro se and in forma pauperis in an action 18 pursuant to 42 U.S.C. § 1983. Presently before the court is plaintiff’s motion for an extension of 19 time to file objections to the courts findings and recommendations (ECF No. 108) and plaintiff’s 20 motion to appoint counsel (ECF No. 97). 21 I. Motion for an Extension of Time Plaintiff requested an extension of time to file objections to the court’s December 12, 22 23 2017, findings and recommendations. (ECF NO. 109.) Before the court ruled on his motion for 24 an extension of time, plaintiff filed objections to the court’s findings and recommendations. 25 (ECF No. 110.) Accordingly, the court will deny as moot plaintiff’s motion for an extension of 26 time to file objections. 27 28 II. Motion to Appoint Counsel Plaintiff requests that the court appoint counsel. (ECF No. 97.) In support of his motion 1 to appoint counsel plaintiff argues he is incarcerated, lacks income to employ counsel, has limited 2 access to the law library, and has no legal education. 3 The United States Supreme Court has ruled that district courts lack authority to require 4 counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 5 U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the 6 voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 7 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 8 The test for exceptional circumstances requires the court to evaluate the plaintiff’s 9 likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in 10 light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 11 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances 12 common to most prisoners, such as lack of legal education and limited law library access, do not 13 establish exceptional circumstances that would warrant a request for voluntary assistance of 14 counsel. 15 The court finds that plaintiff has not established the existence of exceptional 16 circumstances that would warrant the appointment of counsel because he has failed to allege facts 17 showing anything more than circumstances common to most prisoners. 18 Accordingly, IT IS HEREBY ORDERED that: 19 1. Plaintiff’s motion for an extension of time to file objections (ECF No. 109) is denied as 20 moot; and 21 2. Plaintiff’s motion for the appointment of counsel (ECF No. 97) is denied without 22 prejudice. 23 Dated: February 7, 2018 24 25 26 27 28 DLB12 DLB1/Orders/ Prisoner-civil rights/fran0057.eot4obj.31 2

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