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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DONNIE KAY SNEED,

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No. 2:14-cv-2478 GEB KJN P

Plaintiff,
v.

ORDER

FRED FAULK, Warden,
Defendant.

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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. First, plaintiff requests that the court appoint counsel. District courts lack authority to

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

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

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attorney to voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell v. Brewer,

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935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir.

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1990). When determining whether “exceptional circumstances” exist, the court must consider

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plaintiff’s likelihood of success on the merits as well as the ability of the plaintiff to articulate his

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

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965, 970 (9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel).

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The 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.
Second, plaintiff has filed objections to the findings and recommendations.1 However, the

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findings and recommendations were filed on June 16, 2017, and plaintiff was required to file

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objections within fourteen days, or by June 30, 2017. Under the mailbox rule plaintiff signed the

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objections on July 5, 2017, after the deadline expired. The district court adopted the findings and

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recommendations and entered judgment on July 19, 2017. Thus, plaintiff’s objections are

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untimely, and the court declines to consider them.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for the appointment of counsel (ECF No. 40) is denied without

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prejudice;
2. Plaintiff’s objections (ECF No. 39) are untimely and the court declines to consider

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them; and
3. Plaintiff’s duplicative objections (ECF No 41) are disregarded.

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Dated: July 25, 2017

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/mp/cw/snee2478.31

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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.
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