Tomasini v. Chau et al

Filing 8

ORDER signed by Magistrate Judge Allison Claire on 2/28/2019 DENYING plaintiff's 7 motion for appointment of counsel. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PAUL C. TOMASINI,

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No. 2:18-cv-0286 JAM AC P

Plaintiff,
v.

ORDER

JAMES CHAU, 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. ECF No. 7. In support of the request, plaintiff asserts that his advanced

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age, the complexity of his case, and the fact that he is currently suffering side effects from cancer

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treatment warrant appointment of counsel. See id.

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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). A review of
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plaintiff’s complaint indicates that plaintiff raises two claims: one of deliberate indifference to

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his serious medical needs and another of cruel and unusual punishment as they relate to his

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bladder and cancer issues. See ECF No. 1 at 5-14. On their face, these are straightforward,

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simple claims. In addition, a review of the complaint as well as of the instant motion to appoint

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counsel indicates that thus far, plaintiff has been able to articulate his claims in a fairly clear

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manner. See generally ECF Nos. 1, 7. For these reasons, the court does not find the required

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exceptional circumstances.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for the appointment of
counsel (ECF No. 7) is DENIED.
DATED: February 28, 2019

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