(PC) Burnette v. Merrifield ( 2019 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 PAUL J. BURNETTE, No. 2:19-cv-2283 DB P 11 Plaintiff, 12 v. ORDER 13 KIMBERLY MERRIFIELD, et al., 14 Defendants. 15 16 Plaintiff, confined at Napa State Hospital pursuant to a determination of incompetency 17 under California Penal Code § 1370, has requested appointment of counsel. 18 The United States Supreme Court has ruled that district courts lack authority to require 19 counsel to represent indigent persons in § 1983 cases. Mallard v. United States Dist. Court, 490 20 U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the 21 voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 22 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 23 The test for exceptional circumstances requires the court to evaluate the plaintiff’s 24 likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in 25 light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 26 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Common 27 circumstances, such as lack of legal education and limited law library access, do not establish 28 exceptional circumstances that would warrant a request for voluntary assistance of counsel. In 1 | findings and recommendations issued on November 18, 2019, this court recommended dismissal 2 | of this action. The appointment of counsel would not alter the fact that plaintiff's complaint does 3 | not state a cognizable claim under § 1983. 4 Accordingly, IT IS HEREBY ORDERED that plaintiff's motion for the appointment of 5 || counsel (ECF No. 5) is denied. 6 | Dated: December 4, 2019 7 8 9 ‘BORAH BARNES UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 | DLB:9 DB/prisoner-civil rights/burn2283.31 19 20 21 22 23 24 25 26 27 28