Tunstall, Jr. v. Virga, et al.

Filing 56

ORDER signed by Magistrate Judge Allison Claire on 6/2/2016 DENYING plaintiff's 55 motion for the appointment of counsel. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT WILLIAM TUNSTALL, JR.,

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No. 2:14-cv-2220 TLN AC P (TEMP)

Plaintiff,

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v.

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T. VIRGA, et al.,

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ORDER

Defendants.

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Plaintiff, a state prisoner proceeding pro se with a civil rights action, has filed his seventh

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request for appointment of counsel. (See ECF Nos. 3, 12, 13, 14, 15, 23). Each of these previous

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requests was denied. (ECF Nos. 16, 17, 24.)

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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). Circumstances
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common to most prisoners, such as lack of legal education and limited law library access, do not

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establish exceptional circumstances that would warrant a request for voluntary assistance of

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counsel.

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Plaintiff seeks appointment of counsel because he has dementia; he is hearing, mobility,

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and vision impaired; and he is being denied daily access to the law library. The court, however,

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does not find the required exceptional circumstances here. Not only does plaintiff fail to support

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his claim of dementia with any medical documentation, but his pleading is premised on his ability

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to communicate effectively in written form despite his various impairments. Furthermore,

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plaintiff does not have a right to daily access to the law library. See Lewis v. Casey, 518 U.S.

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343, 346 (1996). The undersigned notes that plaintiff has demonstrated an adequate ability to

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write and articulate his claims pro se, he has not demonstrated that the issues involved in this case

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are complex or that he has had any difficulties in expressing them, and, lastly, he has not shown a

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likelihood of success on the merits aside from his conclusory statements that his case has merit.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s March 29, 2016, motion for the

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appointment of counsel (ECF No. 55) is denied.

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DATED: June 2, 2016

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