(PC) Franks v. Giddings ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 TOM M. FRANKS, No. 2:17-cv-1056 KJM CKD P 11 Plaintiff, 12 v. ORDER 13 J. CLARK KELSO, et al., 14 Defendants. 15 16 Plaintiff is a state prisoner proceeding pro se in an action brought under 42 U.S.C. § 1983. 17 Plaintiff requests that the court appoint counsel. District courts lack authority to require counsel 18 to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist. Court, 490 19 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney to 20 voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 21 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 22 When determining whether “exceptional circumstances” exist, the court must consider plaintiff’s 23 likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro 24 se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 25 (9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel). The 26 burden of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances 27 common to most prisoners, such as lack of legal education and limited law library access, do not 28 establish exceptional circumstances that warrant a request for voluntary assistance of counsel. 1 Having considered the factors under Palmer, the court finds that plaintiff has failed to 2 | meet his burden of demonstrating exceptional circumstances warranting the appointment of 3 | counsel at this time. 4 Accordingly, IT IS HEREBY ORDERED that plaintiffs request for the appointment 5 | of counsel (ECF No. 81, 82) is denied. 6 | Dated: October 27, 2020 f° Lf Le , CANO fe KOU rg CAROLYN K. DELANEY g UNITED STATES MAGISTRATE JUDGE 9 10 11 | ingy D fran1056.31(3) 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28