Brownlee v. Jones et al

Filing 29

ORDER signed by Magistrate Judge Carolyn K. Delaney on 4/11/2018 DENYING 27 request for the appointment of counsel; and DENYING plaintiff's 27 request for an investigator, large print materials, and phone access. (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 BENJAMIN JUSTIN BROWNLEE, 12 13 14 15 No. 2:17-cv-0872 CKD P Plaintiff, v. ORDER SCOTT JONES, et al., Defendants. 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 Plaintiff has also requested a court-appointed investigator, large print material, and phone 6 access. The expenditure of public funds on behalf of an indigent litigant is proper only when 7 authorized by Congress. Tedder v. Odel, 890 F.2d 210 (9th Cir. 1989). The in forma pauperis 8 statute does not authorize the expenditure of public funds for investigators or the other requested 9 items. See 28 U.S.C. § 1915. 10 Accordingly, IT IS HEREBY ORDERED that: 11 1. Plaintiff’s request for the appointment of counsel (ECF No. 27) is denied; and 12 2. Plaintiff’s request for an investigator, large print materials, and phone access (ECF No. 13 27) is also denied. 14 Dated: April 11, 2018 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 12/brow0872.31(2) 22 23 24 25 26 27 28 2

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