Opinion
No. CIV S-07-2800 JAM DAD P.
October 3, 2008
ORDER
Plaintiff is a state prisoner proceeding pro se with a civil rights action. Several of plaintiff's motions are pending before the court.
First, plaintiff has filed a motion to appoint 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).
The test for exceptional circumstances requires the court to evaluate the plaintiff's likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). 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. In the present case, the court does not find the required exceptional circumstances.
Plaintiff has also filed a motion seeking leave to file a second amended complaint together with a proposed second amended complaint. At this time, the court will not rule on plaintiff's motion. Rather, in accordance with the Local Rules of Court and this court's May 7, 2008 order, defendant Dudley will have an opportunity to file an opposition or a statement of non-opposition to plaintiff's motion. See Local Rule 78-230(m).
In accordance with the above, IT IS HEREBY ORDERED that:
1. Plaintiff's September 24, 2008 motion to appoint counsel (Doc. No. 30) is denied; and
2. Within twenty days of the date of this order defendant Dudley shall file an opposition or a statement of non-opposition to plaintiff's September 24, 2008 motion for leave to file a second amended complaint. Plaintiff shall file a reply, if any, in accordance with Local Rule 78-230(m).