Sneed v. Faulk

Filing 42

ORDER signed by Magistrate Judge Kendall J. Newman on 7/25/17 denying 40 Motion to Appoint Counsel. Plaintiffs objections 39 are untimely and the court declines to consider them. Plaintiffs duplicative objections 41 are disregarded. (Plummer, M)

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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 DONNIE KAY SNEED, 12 13 14 15 No. 2:14-cv-2478 GEB KJN P Plaintiff, v. ORDER FRED FAULK, Warden, Defendant. 16 17 Plaintiff is a state prisoner, proceeding pro se, in an action brought under 42 U.S.C. 18 § 1983. First, plaintiff requests that the court appoint counsel. District courts lack authority to 19 require counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States 20 Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an 21 attorney to voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 22 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 23 1990). When determining whether “exceptional circumstances” exist, the court must consider 24 plaintiff’s likelihood of success on the merits as well as the ability of the plaintiff to articulate his 25 claims pro se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 26 965, 970 (9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel). 27 The burden of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances 28 common to most prisoners, such as lack of legal education and limited law library access, do not 1 1 establish exceptional circumstances that warrant a request for voluntary assistance of counsel. 2 Having considered the factors under Palmer, the court finds that plaintiff has failed to 3 meet his burden of demonstrating exceptional circumstances warranting the appointment of 4 counsel at this time. Second, plaintiff has filed objections to the findings and recommendations.1 However, the 5 6 findings and recommendations were filed on June 16, 2017, and plaintiff was required to file 7 objections within fourteen days, or by June 30, 2017. Under the mailbox rule plaintiff signed the 8 objections on July 5, 2017, after the deadline expired. The district court adopted the findings and 9 recommendations and entered judgment on July 19, 2017. Thus, plaintiff’s objections are 10 untimely, and the court declines to consider them. 11 Accordingly, IT IS HEREBY ORDERED that: 12 1. Plaintiff’s motion for the appointment of counsel (ECF No. 40) is denied without 13 prejudice; 2. Plaintiff’s objections (ECF No. 39) are untimely and the court declines to consider 14 15 them; and 3. Plaintiff’s duplicative objections (ECF No 41) are disregarded. 16 17 Dated: July 25, 2017 18 19 20 /mp/cw/snee2478.31 21 22 23 24 25 26 27 28 1 Plaintiff filed a duplicate set of objections on July 20, 2017. (ECF No. 41.) Because the second set is duplicative, the court disregards the filing. 2

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