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Johnson v. Robinson

United States District Court, E.D. California

March 3, 2014

KEVIN B. JOHNSON, Plaintiff,
v.
R. ROBINSON, et al., Defendants.

ORDER

DALE A. DROZD, Magistrate Judge.

Plaintiff is a state prisoner proceeding pro se with a civil rights complaint pursuant to 42 U.S.C. § 1983. Before the court is plaintiff's motion for the appointment of counsel, defendant King's request for an extension of time, and a notice of substitution of attorney for defendant Robinson.

As to plaintiff's motion for the 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. Therefore, the motion will be denied.

Defendant King has requested a third extension of time to file his response to plaintiff's complaint pursuant to the court's order of October 17, 2013. The prior requests for extensions of time were filed on behalf of all defendants by the assigned Deputy Attorney General. The pending request on behalf of defendant King for another extension of time was filed by attorney Denise Serra with the law office of McNamara, Ney, Beatty, Slattery, Borges & Ambacher LLP. (ECF No. 21.) Attorney Serra explains that due to a conflict of interest with other defendants in this action, on February 25, 2014, her office agreed to represent defendant King; however, the response to the complaint was due six days thereafter or March 3, 2014. (Id. at 2.) Accordingly, attorney Serra requests an extension of time to and including March 31, 2014. Good cause appearing, this request will be granted. The court will also order attorney Serra to file a request for substitution of attorneys pursuant to Local Rule 182(g).

A substitution of counsel has been filed on behalf of defendant R. Robinson. (ECF No. 23.) The notice complies with Local Rule 182(g) and will be approved.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's February 26, 2014 motion for the appointment of counsel (ECF No. 20) is denied;

2. Defendant King's February 27, 2014 motion for an extension of time (ECF No. 21) is granted. On or before March 31, 2014, defendant King shall file a response to plaintiff's complaint;

3. Within seven days from the service of this order, counsel for defendant King shall file a request for substitution of attorneys pursuant to Local Rule 182(g); and

4. The substitution of counsel (ECF No. 23) filed February 28, 2014, substituting attorney Shanan L. Hewitt of the Law Offices of Rivera & Associates in as counsel of record for defendant Robinson is approved.


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