Opinion
No. 2:15-cv-1810 AC P
05-24-2016
MERVIN S. DUNFORD, Plaintiff, v. JEFFREY A. BEARD, et al., Defendants.
ORDER
Plaintiff, a state prisoner proceeding pro se with a civil rights action, has requested appointment of counsel. ECF No. 10.
It appears that this motion may have been filed in the wrong court, as the caption is for the Solano County Superior Court and the motion bears a state court case number. Id. at 1. If plaintiff intended to file his motion for appointment of counsel with the state court, he will need to resubmit the motion to that court. In the event that plaintiff intended to file the motion in this case, the court will address it. However, plaintiff is advised that any future motions filed in this case must have the name of this court, "United States District Court for the Eastern District of California," and the number for this case, 2:15-cv-1810 AC, on the first page. Failure to provide the proper court and case number information on the first page of any future motions may result in the motions being disregarded and returned to plaintiff as misfiled.
With respect to plaintiff's request for counsel, the United States Supreme Court has ruled that district courts lack authority to require counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the voluntary assistance of counsel pursuant to 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, a court must consider 'the 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) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). 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 would warrant a request for voluntary assistance of counsel.
The court recently screened the complaint and dismissed it with leave to amend. ECF No. 5. In screening the complaint, the court outlined the applicable legal standards for plaintiff and explained to him what he would have to show in order to state a claim. Id. Since it does not appear that plaintiff had received the screening order at the time he submitted the motion for appointment of counsel, he likely has not yet attempted to follow the court's instructions for amending the complaint. At this stage the court is therefore unable to evaluate plaintiff's likelihood of success on the merits or his ability to articulate his claims. For these reasons, the court is unable to find the necessary exceptional circumstances at this time and finds that appointment of counsel would be premature at this stage of the case.
Summary
Plaintiff needs to make sure that he is sending his motions to the right court and that when he files documents in this case the documents must have the name of this court and this case number on the first page.
The motion for appointment of counsel is denied because it is too early in the case for the court to find that exceptional circumstances exist. ////
Accordingly, IT IS HEREBY ORDERED that plaintiff's motion for the appointment of counsel (ECF No. 10) is denied without prejudice. DATED: May 24, 2016
/s/_________
ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE