Clemente v. Parciasepe et al

Filing 49

ORDER signed by Magistrate Judge Kendall J. Newman on 5/21/15 denying 42 and 45 Motions to Appoint Counsel. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MARCELINO CLEMENTE,

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Plaintiff,

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No. 2:14-cv-0611 MCE KJN P

v.

ORDER

T. PARCIASEPE, et al.,

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Defendants.

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Plaintiff is a state prisoner, proceeding pro se, in an action brought under 42 U.S.C. §

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1983.
By order filed April 22, 2015, defendants were directed to inform the court of the status of

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plaintiff’s legal materials. On May 11, 2015, defendants filed a response in which they provided

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property receipts demonstrating that plaintiff received “1-/1/2 box[es] of misc. paperwork” on

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March 9, 2015, and that on April 21, 2015, plaintiff received “misc. paperwork and legal mail.”

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(ECF Nos. 46 at 2-3; 46-1 at 2, 4.) Plaintiff did not note on either property receipt that “all” of

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his legal material was missing, and the receipts refute such a claim. However, if there are

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particular documents that plaintiff needs to oppose defendants’ May 15, 2015 motion for

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summary judgment, plaintiff may seek copies, either from counsel for defendants or from the

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court.

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Plaintiff requests that the court appoint counsel. District courts lack authority to require

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counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist.

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Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney

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to voluntarily represent such a plaintiff. See 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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When determining whether “exceptional circumstances” exist, the court must consider plaintiff’s

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likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro

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se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970

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(9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel). The

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burden of demonstrating exceptional circumstances is on the plaintiff. Id. 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 warrant a request for voluntary assistance of counsel.

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Having considered the factors under Palmer, the court finds that plaintiff has failed to

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meet his burden of demonstrating exceptional circumstances warranting the appointment of

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counsel at this time.

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

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counsel (ECF Nos. 42, 45) are denied without prejudice.

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Dated: May 21, 2015

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/mp/cw/clem0611.31(2)

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