Washington v. California Department of Corrections

Filing 36

ORDER signed by Magistrate Judge Craig M. Kellison on 09/12/17 DENYING 20 , 32 motions to Appoint Counsel. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WILLIAM NATHANIEL WASHINGTON,

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No. 2:15-cv-2302-MCE-CMK-P

Plaintiff,
vs.

ORDER

CALIFORNIA DEPARTMENT OF
CORRECTIONS, et al.,

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Defendant.
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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42

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U.S.C. § 1983. Plaintiff seeks the appointment of counsel. The United States Supreme Court

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has 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. Circumstances common to most prisoners,

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such as lack of legal education and limited law library access, do not establish exceptional

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circumstances that would warrant a request for voluntary assistance of counsel.

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

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circumstances. Plaintiff’s request is based on his lack of funds to hire counsel, the limitations his

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incarceration poses such as limited law library access, his limited legal knowledge, and the

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complexity of this case. However, these circumstances are the type common to most prisoners

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which do not establish exceptional circumstances. In addition, plaintiff has demonstrated

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sufficient writing ability and legal knowledge to articulate his claim. The single claim in this

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case appears to be a straight forward Eighth Amendment claim for lack of, or delay in, medical

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treatment and not overly complex. Finally, as to the merits of plaintiff’s case, at this stage of the

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proceedings, the undersigned cannot say that plaintiff is likely to prevail in the lawsuit. If this

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action survives summary judgment, plaintiff may renew his motion for the appointment of

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counsel.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s request for the
appointment of counsel (Docs. 20, 32) is denied.

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DATED: September 12, 2017
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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