United States District Court, E.D. California
March 27, 2014
CHARLES MOSES, Plaintiff,
CALIFORNIA MEDICAL FACILITY, et al., Defendants.
CRAIG M. KELLISON, Magistrate Judge.
Plaintiff, a state prisoner proceeding pro se, brought this action in the Solano County Superior Court. Defendants removed the case to this court pursuant to 28 U.S.C. §§ 1331, 1441. Pending before the court is plaintiff's request for the appointment of counsel (Doc. 10).
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. First, the record demonstrates that plaintiff is able to articulate his position and claims on his own, as his pleadings are both legible and articulate. Second, the undersigned has issued findings and recommendations that this case be remanded back to State court. As such, there does not appear to be any likelihood of success on the merits in this court. Plaintiff may seek what ever assistance is available to him in the State court once this matter has been remanded.
Accordingly, IT IS HEREBY ORDERED that plaintiff's request for the appointment of counsel (Doc.10) is denied.