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Theodore Britton Yates v. Department of Motor Vehicles California

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


March 15, 2011

THEODORE BRITTON YATES, PLAINTIFF,
v.
DEPARTMENT OF MOTOR VEHICLES CALIFORNIA, DEFENDANT.

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 indicated that due to his lack of access to the prison law library, he has had difficulty submitting an amended complaint to the court, as he was granted leave to do on February 2, 2011. Good cause appearing, plaintiff will be given an extension of time to file his amended complaint.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's February 24, 2011 motion for appointment of counsel (Docket No. 15) is denied.

2. Plaintiff is granted thirty days within which to file an amended complaint as required by this court's February 2, 2011 order. Failure to file an amended complaint within thirty days will result in dismissal.

20110315

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