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Benyamini v. Kretch

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


March 3, 2009

ROBERT P. BENYAMINI, PLAINTIFF,
v.
W. KRETCH, ET AL., DEFENDANTS.

ORDER

Plaintiff, a state prisoner proceeding pro se with a civil rights action, has requested appointment of 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 requested an extension of time to file an amended complaint pursuant to the court's order of January 28, 2009. Good cause appearing, plaintiff's request will be granted.

Accordingly, IT IS HEREBY ORDERED that: 1. Plaintiff's February 24, 2009 motion for appointment of counsel (Doc. No. 6) is denied;

2. Plaintiff's February 26, 2009 motion for an extension of time (Doc. No. 7) is granted; and

3. Plaintiff is granted ninety days from the date of this order in which to file an amended complaint.

20090303

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