Harris v. Fernan et al
Filing
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ORDER signed by Magistrate Judge Kendall J. Newman on 1/10/2018 DENYING without prejudice plaintiff's 23 , 25 motions 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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WAYDE HOLLIS HARRIS,
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No. 2:17-cv-0680 GEB KJN P
Plaintiff,
v.
ORDER
S. KERNAN, et al.,
Defendants.
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Plaintiff is a state prisoner, proceeding pro se, in an action brought under 42 U.S.C.
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§ 1983. Plaintiff requests that the court appoint counsel. However, plaintiff filed his requests on
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a form used in petitions filed under 28 U.S.C. § 2254. Standards governing appointment of
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counsel under § 2254 differs from those used in § 1983 cases.
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In § 1983 cases, district courts lack authority to require counsel to represent indigent
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prisoners. 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 represent such a plaintiff. See 28
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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 plaintiff’s likelihood of success on the merits as
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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) (district court did not
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abuse discretion in declining to appoint counsel). The burden of demonstrating exceptional
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circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such as lack of
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legal education and limited law library access, do not establish exceptional circumstances that
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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. Moreover, although plaintiff claims he is mentally impaired, plaintiff has
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been able to comply with court orders, and to raise cognizable claims supported by appropriate
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medical records sufficient to state cognizable civil rights claims against Dr. Kuersten. Finally, at
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this stage of the proceedings, the court is unable to determine whether plaintiff is likely to
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succeed on the merits of such claims.
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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motions for the appointment of
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counsel (ECF No. 23 and 25) are denied without prejudice.
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Dated: January 10, 2018
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/harr0680.31
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