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Mathew Alan Lawrie v. Kamala Harris

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


May 9, 2011

MATHEW ALAN LAWRIE, PLAINTIFF,
v.
KAMALA HARRIS, ET AL., DEFENDANTS.

ORDER

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. He has requested that the court determine whether he is entitled to attorney fees under 42 U.S.C. § 1988 and appoint counsel. Dckt. Nos. 5, 7.

I. Motion for Appointment of Counsel

District courts lack authority to require counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request counsel voluntarily to represent such a plaintiff. 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 court finds that there are no exceptional circumstances in this case.

II. Attorney Fees under 42 U.S.C. § 1988

Section 1988 authorizes the court to award attorney fees in a civil rights action such as this to the prevailing party. As no merits determination has yet been made in this case (the court has not yet screened the complaint and no order has issued requiring service on any defendant), it would be premature at this stage to award attorney fees to plaintiff. More to the point, plaintiff is not entitled to attorney fees under § 1988, as he is appearing pro se. Elwood v. Drescher, 456 F.3d 943, 946 (9th Cir. 2006) (citing Kay v. Ehrler, 499 U.S. 432, 437-38 (1991), for the proposition that "§ 1988 d[oes] not authorize the award of fees to pro se litigants").

III. Order

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's April 27, 2011 request for appointment of counsel is denied.

2. Plaintiff's March 28, 2011 motion for attorney fees is denied.

20110509

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