Perry

MEMORANDUM

California state prisoner Robert Led Jenkins appeals from the district court judgment against him in his action against correctional officer Defendants Perry, Bradford, and Chalabian for an alleged violation of his Eighth Amendment rights. Jenkins challenges the district court’s denial of his motion to appoint counsel under 28 U.S.C. § 1915 (e)(1) and the district court’s denial of his writ of habeas corpus ad testificandum to have incarcerated witnesses brought to testify at his trial. We have jurisdiction under 28 U.S.C. § 1291 , and reviewing for abuse of discretion, Wilkerson v. Wheeler, 772 F.3d 834, 838 (9th Cir.2014) (denial of motion to appoint counsel), United States v. Smith, 924 F.2d 889, 896 (9th Cir.1991) (denial of writ of habeas corpus ad testificandum), we affirm.

The district court was within its discretion in denying Jenkins’s motion to appoint counsel under 28 U.S.C. § 1915 (e)(1) because the evidence before the district court at the time of the motion indicated that Jenkins was unlikely to succeed. Even if Jenkins was assumed to have a likelihood of success on the merits he still could not demonstrate exceptional circumstances because he was able…