McClintock v. Colosimo, et al

Filing 75

ORDER denying 73 Motion to Appoint Counsel signed by Magistrate Judge Allison Claire on 4/08/16. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN MCCLINTOCK,

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No. 2:13-cv-0264 TLN AC (TEMP) P

Plaintiff,
v.

ORDER

COLOSIMO et al.,
Defendants.

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Plaintiff, a state prisoner proceeding pro se with a civil rights action, has requested
appointment of counsel.
The United States Supreme Court has ruled that district courts lack authority to require

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counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490

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U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the

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voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d

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1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

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The test for exceptional circumstances requires the court to evaluate the plaintiff's

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likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in

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light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328,

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1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). When determining

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whether “exceptional circumstances” exist, the court must consider plaintiff's likelihood of
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success on the merits as well as the ability of the plaintiff to articulate his claims pro se in light of

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the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009).

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The burden of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances

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common to most prisoners do not establish exceptional circumstances.

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

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Plaintiff's Eighth Amendment claims are not particularly complex, and plaintiff has thus far been

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able to articulate his claims pro se. Plaintiff’s limited legal knowledge and potential discovery

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disputes with defendants are circumstances common to most prisoners that do not warrant

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appointment of counsel.

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Accordingly, IT IS HEREBY ORDERED that plaintiff's motion for appointment of

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counsel (ECF No. 73) is denied without prejudice.

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DATED: April 8, 2016

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