Zwirn v. Ruggiero

Filing 22

ORDER signed by Magistrate Judge Carolyn K. Delaney on 9/13/2017 DENYING without prejudice plaintiff's 21 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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DAVID ZWIRN,

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No. 2:16-cv-2853 CKD P
Plaintiff,

v.

ORDER

A. RUGGIERO, et al.,
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 has filed a document the court construes as plaintiff’s third request for the appointment

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of counsel. District courts lack authority to require counsel to represent indigent prisoners in

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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 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 plaintiff’s likelihood of success on the

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

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of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court

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did not abuse discretion in declining to appoint counsel). The burden of demonstrating

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exceptional circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such
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as lack of legal education and limited law library access, do not establish exceptional

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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 motion for the appointment of

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counsel (ECF No. 21) is denied without prejudice.

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Dated: September 13, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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zwir2853.mfc

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