(PC) Herrera v. Statti, No. 2:2010cv01154 - Document 79 (E.D. Cal. 2013)

Court Description: ORDER signed by Chief Judge Morrison C. England, Jr. on 9/12/2013 DENYING 76 , 78 Motions to Appoint Counsel; ADOPTING, in full, 75 Findings and Recommendations; GRANTING 45 Motion to Dismiss; DISMISSING Defendants B. Wheeler, K. Clement, J. M icone, W. Harrison; REFERRING this matter back to the magistrate judge for further proceedings on Plaintiffs sole remaining claim that defendant Medina failed to provide him with adequate medical care in violation of the Eighth Amendment. (Michel, G)

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(PC) Herrera v. Statti Doc. 79 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 FOR THE EASTERN DISTRICT OF CALIFORNIA 11 12 ROBERTO HERRERA, 13 No. 2:10-cv-1154 MCE DAD P Plaintiff, 14 v. 15 P. STATTI, et al., 16 ORDER Defendants. 17 18 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief 19 under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 20 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On August 9, 2013, the magistrate judge filed findings and recommendations herein 22 which were served on all parties and which contained notice to all parties that any objections to 23 the findings and recommendations were to be filed within fourteen days. Plaintiff has filed 24 objections to the findings and recommendations. 25 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 26 Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 27 Court finds the findings and recommendations to be supported by the record and by proper 28 analysis. 1 Dockets.Justia.com 1 In addition, plaintiff has requested appointment of counsel. The United States Supreme 2 Court has ruled that district courts lack authority to require counsel to represent indigent prisoners 3 in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain 4 exceptional circumstances, the district court may request the voluntary assistance of counsel 5 pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); 6 Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 7 The test for exceptional circumstances requires the court to evaluate the plaintiff’s 8 likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in 9 light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 10 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances 11 common to most prisoners, such as lack of legal education and limited law library access, do not 12 establish exceptional circumstances that would warrant a request for voluntary assistance of 13 counsel. In the present case, the court does not find the required exceptional circumstances. 14 Accordingly, IT IS HEREBY ORDERED that: 15 1. Plaintiff’s August 19, 2013 and August 23, 2013 motions for appointment of counsel 16 (ECF Nos. 76 and 78) are DENIED; 2. The findings and recommendations filed August 9, 2013 (ECF No. 75), are ADOPTED 17 18 in full; 19 3. Defendants’ November 20, 2012 motion to dismiss (ECF No. 45) is GRANTED; 20 4. Defendants Wheeler, Clement, Micone and Harrison are DISMISSED from this action; 21 22 and 5. This matter is referred back to the magistrate judge for further proceedings on 23 plaintiff’s sole remaining claim that defendant Medina failed to provide him with adequate 24 medical care in violation of the Eighth Amendment. 25 Dated: September 12, 2013 26 27 28 2

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