Brooks v. Spearman et al

Filing 29

ORDER signed by Magistrate Judge Kendall J. Newman on 1/23/2018 DENYING 19 Motion for Leave to File an Amended Complaint and DENYING 21 Motion for the Appointment of Counsel. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DENNIS LYN BROOKS,

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No. 2: 17-cv-2172 JAM KJN P

Plaintiff,
v.

ORDER

M. E. SPEARMAN, et al.,
Defendants.

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On January 8, 2018, plaintiff filed a motion for leave to amend his complaint. Plaintiff’s

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motion was not, however, accompanied by a proposed amended complaint. As a prisoner,

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plaintiff’s pleadings are subject to evaluation by this court pursuant to the in forma pauperis

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statute. See 28 U.S.C. § 1915A. Because plaintiff did not submit a proposed amended complaint,

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the court is unable to evaluate it.

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Plaintiff has also filed a second request for appointment of counsel. District courts lack

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authority to require counsel to represent indigent prisoners in section 1983 cases. Mallard v.

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United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may

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request an attorney to voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell

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v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36

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(9th Cir. 1990). When determining whether “exceptional circumstances” exist, the court must

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consider plaintiff’s likelihood of success on the merits as well as the ability of the plaintiff to
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articulate his claims pro se in light of the complexity of the legal issues involved. Palmer v.

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Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not abuse discretion in declining to

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appoint counsel). The burden of demonstrating exceptional circumstances is on the plaintiff. Id.

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Circumstances common to most prisoners, such as lack of legal education and limited law library

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access, do not establish exceptional circumstances that warrant a request for voluntary assistance

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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 motion for leave to file an amended complaint (ECF No. 19) is denied;

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2. Plaintiff’s motion for appointment of counsel (ECF No. 21) is denied.

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Dated: January 23, 2018

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