Truschke v. Zufall, et al

Filing 24

ORDER signed by Magistrate Judge Carolyn K. Delaney on 5/16/2016 DENYING plaintiff's 22 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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JAMES EDWARD TRUSCHKE, Jr.,

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No. 2:15-cv-0701 CKD P (TEMP)

Plaintiff,
v.

ORDER

JOHN ZUFALL, 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). 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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In the present case, plaintiff brings claims for excessive force, interfering or tampering

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with legal mail, and retaliation. These sorts of cases are routinely encountered by the courts, and

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plaintiff has been able to articulate his claims adequately thus far. In addition, plaintiff’s

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argument that his ability to litigate this case will be hampered by his indigence and incarceration

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do not establish as exceptional circumstances.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s May 5, 2016 motion for the
appointment of counsel (ECF No. 22) is denied.
Dated: May 16, 2016

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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