Tufono v. Parker, et al.

Filing 15

ORDER signed by Magistrate Judge Deborah Barnes on 1/12/2018 DENYING 14 Motion to Appoint Counsel. (Fabillaran, J)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TINO TUFUNO,

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Plaintiff,

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No. 2:16-cv-2448 MCE DB P

v.

ORDER

L. PARKER, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights

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action under 42 U.S.C. § 1983. Plaintiff moved the court to appoint counsel, notified the court

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prison officials were not allowing him use of the law library, and requested verification that the

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court received his amended complaint. (ECF No. 14.) The court received plaintiff’s First

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Amended Complaint on December 11, 2017.
I.

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Motion to Appoint Counsel
Plaintiff requested the court assist him with finding an attorney and stated he is not being

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allowed access to the law library, but provided no other reason for the appointment. (ECF No.

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14.) 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. In the present case, where the court has not yet screened plaintiff’s amended complaint,

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the court cannot make a determination regarding plaintiff’s likelihood of success and does not

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find the required exceptional circumstances.

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II.

Law Library Access
Plaintiff informed the court he is being denied access to the law library, but he does not

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appear to be seeking an order from the court directing prison officials to grant him access.

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Plaintiff does not currently have a deadline in this case. At present, there is nothing plaintiff is

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required to prepare or complete. Once the court screens the amended complaint, plaintiff will

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receive instructions regarding how to proceed.

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If later in this case plaintiff is denied library access to meet a deadline imposed by this

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court, he should first seek help through the prison grievance system. If that is unsuccessful,

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plaintiff may then notify the court of his problems and seek court intervention.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for the appointment of

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counsel (ECF No. 14) is denied.

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Dated: January 12, 2018

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DLB12
DLB1/Orders/Prisoner Civil-Rights/tufo2448.31+lawlib

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