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John Washington v. Salem Mohamed

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


July 17, 2012

JOHN WASHINGTON,
PLAINTIFF,
v.
SALEM MOHAMED, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

ORDER

Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983.

Plaintiff seeks the appointment of counsel. The United States Supreme Court has ruled that district courts lack authority to require counsel to represent indigent prisoners in § 1983 cases. See Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the court may request the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). A finding of "exceptional circumstances" requires an evaluation of both the likelihood of success on the merits and the ability of the plaintiff to articulate his claims on his own in light of the complexity of the legal issues involved. See Terrell, 935 F.2d at 1017. Neither factor is dispositive and both must be viewed together before reaching a decision. See id.

In the present case, the court does not at this time find the required exceptional circumstances. The current issue before the court is whether plaintiff adequately exhausted administrative remedies prior to filing suit. While, in light of the Ninth Circuit's remand order, plaintiff may have a good chance of success on the merits of this issue, plaintiff has demonstrated an ability to articulate his position, both to this court and to the appellate court. Further, as to the merits of the underlying action, plaintiff's Eighth Amendment safety claim is straight forward, the law is not complex, and, as demonstrated on the current record, plaintiff has an ability to articulate his claims without the assistance of counsel.

Accordingly, IT IS HEREBY ORDERED that plaintiff's request for the appointment of counsel (Doc. 48) is denied.

20120717

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