Cuff v. Department of State Hospitals (DSH) - Stockton et al
Filing
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ORDER signed by Magistrate Judge Deborah Barnes on 11/27/2017 DENYING 30 Motion to Appoint Counsel. (York, M)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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BYRON DEWAYNE CUFF,
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No. 2:16-cv-1999 MCE DB P
Plaintiff,
v.
ORDER
DEPARTMENT OF STATE HOSPITALS,
et al.,
Defendants.
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Plaintiff, a state prisoner proceeding pro se with a civil rights action, has requested
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appointment of counsel. Plaintiff contends that in its prior order denying plaintiff’s motion for
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the appointment of counsel, the court failed to consider the likelihood that he will succeed on the
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merits of his case.
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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). However, even a
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meritorious case does not necessitate the appointment of counsel. A prisoner must also show
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something more than the circumstances that are common to most prisoners, such as lack of legal
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education and limited law library access. Those circumstances are not the sort of exceptional
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circumstances that would warrant a request for voluntary assistance of counsel. In the present
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case, the court does not find the required exceptional circumstances.
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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for the appointment of
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counsel (ECF No. 30) is denied.
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Dated: November 27, 2017
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DLB:9
DB/orders/prisoner-civil rights/cuff1999.31(3)
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