Windham v. California Medical Facility, et al

Filing 37

ORDER signed by Magistrate Judge Carolyn K. Delaney on 8/26/16 DENYING 35 Motion 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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SAMUEL WINDHAM, JR.,

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Plaintiff,

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No. 2:15-cv-1058 MCE CKD P

v.

ORDER

CALIFORNIA MEDICAL FACILITY, et
al.,

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Defendants.

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Plaintiff, a state prisoner proceeding pro se and in forma pauperis, has requested

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appointment of counsel. The court cannot require an attorney to represent a plaintiff who cannot

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pay for the attorney’s services. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989).

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However, under the federal in forma pauperis statute, 28 U.S.C. § 1915, the court may request

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that an attorney represent a person unable to afford counsel. 28 U.S.C. § 1915(e)(1). The court

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will make that request only when there are exceptional circumstances. When determining

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whether “exceptional circumstances” exist, the court considers, among other things, 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). While the court is aware of the difficulties attendant to litigating an action while

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incarcerated, circumstances common to most prisoners do not establish “exceptional

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circumstances.”

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In the present case, the court does not find the required exceptional circumstances at this
stage of these proceedings.
Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for appointment of

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counsel (ECF No. 35) is denied without prejudice.

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Dated: August 26, 2016

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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wind1058.coun

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