Cervantes v. Williamson, et al.

Filing 20

ORDER signed by Magistrate Judge Carolyn K. Delaney on 05/09/16 denying 16 Motion to Appoint Counsel. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RAUL CERVANTES,

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No. 2:15-cv-2138 CKD P (TEMP)

Plaintiff,
v.

ORDER

SERGEANT WILLIAMSON 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, plaintiff alleges that he is mentally impaired and receives care at the enhanced

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outpatient level at Salinas Valley State Prison. Although the court sympathizes with plaintiff’s

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challenges, having considered the factors under Palmer, the court does not find the required

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exceptional circumstances for appointment of counsel at this time. Plaintiff’s Eighth Amendment

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claim against defendant Burciaga is not particularly complex, and plaintiff has thus far been able

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to adequately articulate his claims pro se.
Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for appointment of

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counsel (ECF No. 16) is denied without prejudice.

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Dated: May 9, 2016

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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ec
cerv2138.31

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