December 12, 2013
CHANTHON BUN, Plaintiff,
FELKER, et al., Defendants.
EDMUND F. BRENNAN, Magistrate Judge.
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. On December 3, 2013, the court dismissed this case for failure to prosecute after plaintiff failed to submit a pretrial statement in accordance with the court's orders. ECF No. 115. Thereafter, plaintiff's timely version of a pretrial statement, consisting of motions in limine, exhibits, a notice regarding witnesses, and a request for appointment of counsel, was docketed by the Clerk of the Court. ECF Nos. 117-121. Accordingly, the order of dismissal will be vacated.
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 an attorney to voluntarily to represent such a plaintiff. See 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). When determining whether "exceptional circumstances" exist, the court must consider the likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Having considered those factors, the court finds there are no exceptional circumstances in this case.
Accordingly, it is hereby ORDERED that:
1. The Clerk of the Court is directed to vacate the order of dismissal and judgment (ECF Nos. 115, 116) and to reopen this case;
2. Plaintiff's request for appointment of counsel (ECF No. 117) is denied; and
3. Defendants shall file a pretrial statement within 30 days of the date of this order.