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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TIO DINERO SESSOMS, 12 Plaintiff, 13 14 No. 2:16-cv-1943-EFB P v. ORDER JOHN PATRICK KELLER, et al., 15 Defendants. 16 Plaintiff is a former state prisoner proceeding without counsel in an action brought under 17 18 42 U.S.C. § 1983. The United States Marshal was unable to serve defendants Venegas, Jr. and 19 Woods using the information provided by plaintiff. ECF No. 18. Therefore, the court informed 20 plaintiff that if he wished to pursue this action against them, he needed to provide new 21 information about how to locate them for service of process or risk their dismissal pursuant to 22 Rule 4(m) of the Federal Rules of Civil Procedure. The court informed plaintiff that if his access 23 to the required information was unreasonably denied or delayed, he could seek judicial 24 intervention. On January 16, 2018, plaintiff filed a motion for the appointment of counsel for the 25 purpose of helping him find the requested information for service of process. ECF No. 20. A few 26 weeks later, on February 5, 2018, plaintiff provided the court with new information about how to 27 ///// 28 ///// 1 1 locate defendants Venegas, Jr. and Woods for service of process.1 Thus, his request for counsel 2 appears to be moot. 3 Regardless, district courts lack authority to require counsel to represent indigent prisoners 4 in section 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In 5 exceptional circumstances, the court may request an attorney to voluntarily to represent such a 6 plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); 7 Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether 8 “exceptional circumstances” exist, the court must consider the likelihood of success on the merits 9 as well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the 10 legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Having considered 11 those factors, the court finds there are no exceptional circumstances in this case. 12 Accordingly, it is ORDERED that plaintiff’s request for the appointment of counsel (ECF 13 No. 20) is denied without prejudice. 14 DATED: February 13, 2018. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 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. 2

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