Budd v. Harrison

Full title: DANTE RENEE BUDD, Plaintiff, v. J. HARRISSON, et al., Defendants.

Court: United States District Court, Eastern District of California

Date published: Nov 30, 2023

2:23-cv-2313 KJN P (E.D. Cal. Nov. 30, 2023)

Opinion

2:23-cv-2313 KJN P

11-30-2023

DANTE RENEE BUDD, Plaintiff, v. J. HARRISSON, et al., Defendants.

KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE

ORDER

KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE

Plaintiff is a state prisoner, proceeding pro se, in an action brought under 42 U.S.C. § 1983. Plaintiff requests that the court appoint counsel. District courts lack authority to require counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney to voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

When determining whether “exceptional circumstances” exist, the court must consider plaintiff's likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel). The burden of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such as lack of legal education and limited law library access, do not establish exceptional circumstances that warrant a request for voluntary assistance of counsel.

Having considered the factors under Palmer, the court finds that plaintiff failed to meet his burden of demonstrating exceptional circumstances warranting the appointment of counsel at this time.

Finally, on November 22, 2023, plaintiff filed another motion to proceed in forma pauperis. (ECF No. 11.) However, plaintiff was previously granted leave to proceed in forma pauperis. (ECF No. 8.) Therefore, plaintiff's November 22, 2023 motion is denied as moot.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's motion for the appointment of counsel (ECF No. 12) is denied without prejudice; and

2. Plaintiff's November 22, 2023 motion (ECF No. 11) is denied as moot.