Cuff v. Department of State Hospitals (DSH) - Stockton et al

Filing 31

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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