Helton v. Spearman et al

Filing 13

ORDER signed by Magistrate Judge Carolyn K. Delaney on 9/28/2017 GRANTING 11 Motion for Extension of Time and DENYING without prejudice 12 Motion for the Appointment of Counsel. Plaintiff granted 30 days from the date of this order in which to file an amended complaint. (Henshaw, R)

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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 RICHARD J. HELTON, 12 13 14 15 No. 2:17-cv-1694 CKD P Plaintiff, v. ORDER MARION E. SPEARMAN, et al., Defendants. 16 17 18 19 Plaintiff has filed a motion for extension of time to file an amended complaint. Good cause appearing, plaintiff’s request will be granted. Plaintiff has also filed a motion requesting the appointment of counsel. ECF No. 12. 20 District courts lack authority to require counsel to represent indigent prisoners in section 1983 21 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional 22 circumstances, the court may request an attorney to voluntarily represent such a plaintiff. See 28 23 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. 24 Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional 25 circumstances” exist, the court must consider plaintiff’s likelihood of success on the merits as 26 well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the 27 legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not 28 abuse discretion in declining to appoint counsel). The burden of demonstrating exceptional 1 circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such as lack of 2 legal education and limited law library access, do not establish exceptional circumstances that 3 warrant a request for voluntary assistance of counsel. 4 Having considered the factors under Palmer, the court finds that plaintiff has failed to 5 meet his burden of demonstrating exceptional circumstances warranting the appointment of 6 counsel at this time. 7 Accordingly, IT IS HEREBY ORDERED that 8 1. Plaintiff’s motion for an extension of time (ECF No. 11) is granted; 9 2. Plaintiff is granted thirty days from the date of this order in which to file an amended 10 11 complaint; and 3. Plaintiff’s motion for the appointment of counsel (ECF No. 12) is denied without 12 prejudice. 13 Dated: September 28, 2017 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 12/helt1694.36+31 21 22 23 24 25 26 27 28 2

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