Herrera v Gray

Filing 15

ORDER signed by Magistrate Judge Kendall J. Newman on 5/19/2017 DENYING 13 Motion to Appoint Counsel without prejudice and GRANTING 14 Motion for Extension of Time. Plaintiff to file amended complaint within 30 days from the date of this order. (Henshaw, R)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

ARMANDO HERRERA,

12
13
14
15

No. 2-17-cv-0765 KJN P

Plaintiff,
v.

ORDER

GRAY,
Defendant.

16
17

Plaintiff is a state prisoner, proceeding pro se, in an action brought under 42 U.S.C.

18

§ 1983. Plaintiff requests that the court appoint counsel. District courts lack authority to require

19

counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist.

20

Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney

21

to voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d

22

1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

23

When determining whether “exceptional circumstances” exist, the court must consider plaintiff’s

24

likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro

25

se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970

26

(9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel). The

27

burden of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances

28

common to most prisoners, such as lack of legal education and limited law library access, do not
1

1
2

establish exceptional circumstances that warrant a request for voluntary assistance of counsel.
Having considered the factors under Palmer, the court finds that plaintiff has failed to

3

meet his burden of demonstrating exceptional circumstances warranting the appointment of

4

counsel at this time.

5

In addition, plaintiff has filed a motion for extension of time to file his amended

6

complaint. Plaintiff requests a ninety days extension of time on grounds that he is waiting to have

7

surgery. Plaintiff states that he does not know when this surgery will occur. Plaintiff is granted a

8

thirty days extension of time. Any further requests for extension of time must be supported by

9

substantial cause.

10

Good cause appearing, IT IS HEREBY ORDERED that:

11

1. Plaintiff’s motion for the appointment of counsel (ECF No. 13) is denied without

12

prejudice;

13

2. Plaintiff’s motion for an extension of time (ECF No. 14) is granted; and

14

3. Plaintiff is granted thirty days from the date of this order in which to file his amended

15

complaint.

16

Dated: May 19, 2017

17
18
19
20
21

herr0765.31+36

22
23
24
25
26
27
28
2