Kessler v. Sacramento City Police Department et al

Filing 22

ORDER signed by Magistrate Judge Allison Claire on 10/17/2017 DENYING 20 Motion to Appoint Counsel. (Hunt, G)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WESLEY WILLIAM KESSLER,

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No. 2:16-cv-01930-GEB-AC

Plaintiffs,
v.

ORDER

SACRAMENTO CITY POLICE
DEPARTMENT, et al,
Defendants.

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The court is in receipt of plaintiff’s motion to appoint counsel. ECF No. 20. Plaintiff is

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incarcerated, and is bringing his civil rights case under 42 U.S.C. § 1983 as a self-represented

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litigant proceeding in forma pauperis. ECF No. 1, 2, 5 and 20.

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I.

Motion

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Plaintiff requests that the court appoint counsel, asserting that he is not familiar with the

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legal process and lacks regular access to the prison law library. ECF No. 20 at 2. Plaintiff also

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asserts that the prison has lost the property he was planning to use as evidence in his case. Id.

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II.

Analysis

District courts lack authority to require counsel to represent indigent prisoners in section

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1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional

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circumstances, the court may request an attorney to voluntarily to represent such a plaintiff. See

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28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v.
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Housewright, 900 F.2d 1332, 1335–36 (9th Cir. 1990). When determining whether “exceptional

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circumstances” exist, the court must consider the likelihood of success on the merits as well as the

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ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues

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involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009).

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Having considered the relevant factors, the court finds there are no exceptional

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circumstances in this case, and that appointment of counsel is not warranted at this time.

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Plaintiff’s case is not overly complex. See ECF No. 1. Plaintiff’s alleged difficulty in accessing

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the law library and his property does not constitute exceptional circumstances. “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 would warrant a request for voluntary assistance of

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counsel.” Kent v. U.C. Davis Med. Ctr., No. 215CV1924WBSACP, 2016 WL 4208572, at *1

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(E.D. Cal. Aug. 10, 2016). Appointment of counsel therefore is not appropriate.

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III.

Conclusion

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Plaintiff’s motion to appoint counsel (ECF No. 20) is DENIED.

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IT IS SO ORDERED.

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DATED: October 17, 2017

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