Sneed v. Kernan, et al.

Filing 44

ORDER signed by Magistrate Judge Carolyn K. Delaney on 12/12/18 DENYING 41 Motion to Appoint Counsel and GRANTING plaintiff a 30 day extension of time to file his second amended complaint. (Coll, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DONNIE KAY SNEED,

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No. 2:17-cv-2071 MCE CKD P

Plaintiff,
v.

ORDER

SCOTT 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. § 1983.

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Plaintiff has filed a fourth motion for the appointment of counsel to assist him in filing a second

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amended complaint. ECF No. 41. District courts lack authority to require counsel to represent

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indigent prisoners in section 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298

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(1989). In exceptional circumstances, the court may request an attorney to voluntarily represent

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such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.

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

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whether “exceptional circumstances” exist, the court must consider plaintiff’s likelihood of

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

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

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(district court did not abuse discretion in declining to appoint counsel). The burden of

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demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common to most

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prisoners, such as lack of legal education and limited law library access, do not establish
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exceptional 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:

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1. Plaintiff’s request for the appointment of counsel (ECF No. 41) is denied.

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2. In light of the denial of this motion, the court will sua sponte grant plaintiff one 30 day

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extension of time to file his second amended complaint.

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3. Plaintiff is granted thirty days from the date of service of this order to file a second

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amended complaint no more than 20 pages in length as explained in this court’s October 22, 2018

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order.

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4. The failure to file a second amended complaint in accordance with this order will result

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in a recommendation that this action be dismissed.

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Dated: December 12, 2018

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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12/snee2071.31(4)

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