Opinion
No. 2:19-cv-2283 DB P
12-04-2019
PAUL J. BURNETTE, Plaintiff, v. KIMBERLY MERRIFIELD, et al., Defendants.
ORDER
Plaintiff, confined at Napa State Hospital pursuant to a determination of incompetency under California Penal Code § 1370, has requested appointment of counsel.
The United States Supreme Court has ruled that district courts lack authority to require counsel to represent indigent persons in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).
The test for exceptional circumstances requires the court to evaluate the plaintiff's likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Common circumstances, such as lack of legal education and limited law library access, do not establish exceptional circumstances that would warrant a request for voluntary assistance of counsel. In findings and recommendations issued on November 18, 2019, this court recommended dismissal of this action. The appointment of counsel would not alter the fact that plaintiff's complaint does not state a cognizable claim under § 1983.
Accordingly, IT IS HEREBY ORDERED that plaintiff's motion for the appointment of counsel (ECF No. 5) is denied. Dated: December 4, 2019
/s/_________
DEBORAH BARNES
UNITED STATES MAGISTRATE JUDGE DLB:9
DB/prisoner-civil rights/burn2283.31