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Smith v. IGI Liason Unit Investigator

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


August 22, 2008

EARL DWAYNE SMITH, PLAINTIFF,
v.
IGI LIASON UNIT INVESTIGATOR, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

ORDER

Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff has consented to have a magistrate judge conduct all proceedings in this case. Pending before the court is a motion for reconsideration of this court's order filed July 28, 2008, denying plaintiff's request for the appointment of counsel.

Rule 60(b) allows the court to relieve a party from a final judgment or order for limited reasons, including: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence; (3) fraud; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged; or (6) any other reason justifying relief. See Fed. R. Civ. P. 60(b). In this case, plaintiff claims there exists exceptional circumstances in this case which require the appointment of counsel. As was previously explained to plaintiff, the court may request the voluntary assistance of counsel only under exceptional circumstances. See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A finding of exceptional circumstances depends in particular on the likelihood of success of the merits and plaintiff's ability to articulate his claims pro se. See id. (citing Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).

Here, plaintiff has not demonstrated a sufficient reason justifying relief. The denial of plaintiff's request for counsel was within the court's discretion, and plaintiff has not demonstrated that decision was erroneous. Plaintiff may, at a later stage in these proceedings, renew his request for counsel.

Accordingly IT IS HEREBY ORDERED that plaintiff's request for reconsideration of the order denying him appointment of counsel (Doc. 14) is DENIED.

20080822

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