Frank v. Macomber et al
Filing
56
ORDER signed by Magistrate Judge Carolyn K. Delaney on 10/24/17 DENYING 55 Motion to Appoint Counsel. (Plummer, M)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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WARREN FRANK, JR.,
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Plaintiff,
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No. 2:15-cv-2133 KJM CKD P
v.
ORDER
JEFF MACOMBER, 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. § 1983.
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Plaintiff requests that the court appoint counsel. District courts lack authority to require counsel
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to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist. Court, 490
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U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney to
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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 request for the appointment of
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counsel (ECF No. 55) is denied.
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Dated: October 24, 2017
_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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