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Charles Phillips v. L. Fisherman

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


November 28, 2011

CHARLES PHILLIPS, PLAINTIFF,
v.
L. FISHERMAN, ET AL., DEFENDANTS.

ORDER

Plaintiff has filed a motion for entry of default pursuant to Rule 55(a) of the Federal Rules of Civil Procedure. On October 24, 2011, defendants filed a timely answer to plaintiff's amended complaint. Accordingly, the court will deny plaintiff's motion for entry of default.

Plaintiff has also filed a motion for appointment of counsel. As the court previously advised plaintiff, 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.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's motion for entry of default (Doc. No. 40) is denied; and

2. Plaintiff's motion for appointment of counsel (Doc. No. 43) is denied.

DAD:9 phil3266.77b

20111128

© 1992-2011 VersusLaw Inc.



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