Sessoms v. Keller et al

Filing 23

ORDER signed by Magistrate Judge Edmund F. Brennan on 2/13/2018 DENYING without prejudice plaintiff's 20 request 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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TIO DINERO SESSOMS,

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Plaintiff,

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No. 2:16-cv-1943-EFB P

v.

ORDER

JOHN PATRICK KELLER, et al.,

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Defendants.

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Plaintiff is a former state prisoner proceeding without counsel in an action brought under

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42 U.S.C. § 1983. The United States Marshal was unable to serve defendants Venegas, Jr. and

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Woods using the information provided by plaintiff. ECF No. 18. Therefore, the court informed

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plaintiff that if he wished to pursue this action against them, he needed to provide new

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information about how to locate them for service of process or risk their dismissal pursuant to

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Rule 4(m) of the Federal Rules of Civil Procedure. The court informed plaintiff that if his access

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to the required information was unreasonably denied or delayed, he could seek judicial

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intervention. On January 16, 2018, plaintiff filed a motion for the appointment of counsel for the

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purpose of helping him find the requested information for service of process. ECF No. 20. A few

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weeks later, on February 5, 2018, plaintiff provided the court with new information about how to

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locate defendants Venegas, Jr. and Woods for service of process.1 Thus, his request for counsel

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appears to be moot.

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Regardless, district courts lack authority to require counsel to represent indigent prisoners

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

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exceptional circumstances, the court may request an attorney to voluntarily to represent such a

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plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991);

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Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether

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“exceptional circumstances” exist, the court must consider the likelihood of success on the merits

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as well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the

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

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those factors, the court finds there are no exceptional circumstances in this case.

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Accordingly, it is ORDERED that plaintiff’s request for the appointment of counsel (ECF

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No. 20) is denied without prejudice.

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DATED: February 13, 2018.

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By separate order, the court will direct the U.S. Marshal to serve defendants Venegas, Jr.
and Woods using the new information provided by plaintiff.
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