Burgos v. Cate et al

Filing 73

ORDER signed by Magistrate Judge Craig M. Kellison on 9/30/2013 DENYING plaintiff's 52 request for appointment of counsel. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RICHARD MANUEL BURGOS,

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Plaintiff,
vs.

ORDER

MATTHEW L. CATE, et al.,
Defendants.

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No. CIV S-09-3276-MCE-CMK-P

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Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant
to 42 U.S.C. § 1983.
Plaintiff seeks the appointment of counsel. The United States Supreme Court has

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ruled that district courts lack authority to require counsel to represent indigent prisoners in

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§ 1983 cases. See Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain

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exceptional circumstances, the court may request the voluntary assistance of counsel pursuant to

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28 U.S.C. § 1915(e)(1). See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v.

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Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). A finding of “exceptional

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circumstances” requires an evaluation of both the likelihood of success on the merits and the

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ability of the plaintiff to articulate his claims on his own in light of the complexity of the legal
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issues involved. See Terrell, 935 F.2d at 1017. Neither factor is dispositive and both must be

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viewed together before reaching a decision. See id.

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In the present case, the court does not at this time find the required exceptional

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circumstances. First, plaintiff’s filings demonstrate that he is articulate and capable of presenting

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his claims on his own. For example, his filings are well organized and his writing is clear and

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cogent. Second, the facts and law relating to plaintiff’s Eighth Amendment medical care claims

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are not overly complex. Finally, the court cannot say that plaintiff has demonstrated any

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particular likelihood of success on the merits. While his claims have survived a motion to

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dismiss, a review of the filings thus far indicate there is not a high likelihood of success. Indeed,

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the defendants have provided the court with additional information, in response to plaintiff’s

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motion for temporary restraining order, which indicate plaintiff is unlikely to be able to prove the

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defendants were deliberately indifferent to his medical needs.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s request for the
appointment of counsel (Doc. 52) is denied.

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DATED: September 30, 2013
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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