(PC) Humphries v. Curry

E.D. California

(PC) Humphries v. Curry

DecidedFebruary 8, 2023

Docket2:22-cv-00090

StatusUnknown

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DARYLE HUMPHRIES, No. 2:22-cv-0090 KJN P 12 Plaintiff, 13 v. ORDER 14 P. CURRY, 15 Defendant. 16 17 Plaintiff is a state prisoner, proceeding pro se, in an action brought under 42 U.S.C. 18 § 1983. Plaintiff requests that the court appoint counsel. District courts lack authority to require 19 counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist. 20 Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney 21 to voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 22 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 23 When determining whether “exceptional circumstances” exist, the court must consider plaintiff’s 24 likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro 25 se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 26 (9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel). The 27 burden of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances 28 common to most prisoners, such as lack of legal education and limited law library access, do not 1 | establish exceptional circumstances that warrant a request for voluntary assistance of counsel. 2 Having considered the factors under Palmer, the court finds that plaintiff failed to meet his 3 || burden of demonstrating exceptional circumstances warranting the appointment of counsel at this 4 | time. 5 Accordingly, IT IS HEREBY ORDERED that plaintiff's motion for the appointment of 6 || counsel (ECF No. 27) is denied without prejudice. 7 || Dated: February 8, 2023 Foci) Aharon 9 KENDALL J. NE /bump0090.31 UNITED STATES MAGISTRATE JUDGE 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DARYLE HUMPHRIES, No. 2:22-cv-0090 KJN P 12 Plaintiff, 13 v. ORDER 14 P. CURRY, 15 Defendant. 16 17 Plaintiff is a state prisoner, proceeding pro se, in an action brought under 42 U.S.C. 18 § 1983. Plaintiff requests that the court appoint counsel. District courts lack authority to require 19 counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist. 20 Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney 21 to voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 22 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 23 When determining whether “exceptional circumstances” exist, the court must consider plaintiff’s 24 likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro 25 se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 26 (9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel). The 27 burden of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances 28 common to most prisoners, such as lack of legal education and limited law library access, do not 1 | establish exceptional circumstances that warrant a request for voluntary assistance of counsel. 2 Having considered the factors under Palmer, the court finds that plaintiff failed to meet his 3 || burden of demonstrating exceptional circumstances warranting the appointment of counsel at this 4 | time. 5 Accordingly, IT IS HEREBY ORDERED that plaintiff's motion for the appointment of 6 || counsel (ECF No. 27) is denied without prejudice. 7 || Dated: February 8, 2023 Foci) Aharon 9 KENDALL J. NE /bump0090.31 UNITED STATES MAGISTRATE JUDGE 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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