Logan v. Horwitz, et al.

Filing 116

ORDER denying 115 Motion to Appoint Counsel signed by Magistrate Judge Allison Claire on 03/17/17. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMES DAVID LOGAN, II,

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No. 2:15-cv-0121 MCE AC P

Plaintiff,
v.

ORDER

EVALYN HORWITZ,
Defendants.

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Plaintiff, a state prisoner proceeding pro se with a civil rights action, has again requested
appointment of counsel. ECF No. 115. This request will again be denied.
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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“When determining whether ‘exceptional circumstances’ exist, a court must consider ‘the

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

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

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970 (9th Cir. 2009) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). The burden

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of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common to
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most prisoners, such as lack of legal education and limited law library access, do not establish

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exceptional circumstances that would warrant a request for voluntary assistance of counsel.

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Plaintiff has not demonstrated any changes in his circumstances since the court last denied

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his request for counsel, he still has not shown that he has any likelihood of success on the merits,

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and he continues to be capable of articulating his claims. The court therefore does not find the

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required exceptional circumstances and plaintiff’s request for counsel will be denied without

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prejudice.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for the appointment of
counsel (ECF No. 115) is denied.
DATED: March 17, 2017

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