Dibartolomeo v. Jimenez et al

Filing 34

ORDER signed by Magistrate Judge Kendall J. Newman on 8/24/2016 DENYING plaintiff's 33 motion for the appointment of counsel. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSEPH ANTHONY DiBARTOLOMEO,

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No. 2:15-cv-2347 JAM KJN P

Plaintiff,
v.

ORDER

LINDA JIMINEZ, et al.,
Defendants.

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Plaintiff is a county inmate, proceeding without counsel, with an action brought under 42

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U.S.C. § 1983. 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.
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 motion for the appointment of

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counsel (ECF No. 33) is denied without prejudice.

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Dated: August 24, 2016

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diba2347.31kjn

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