(PC) Garcia v. Win ( 2019 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSE ABEL GARCIA, No. 2:19-CV-9434-TLN-DMC-P 12 Plaintiff, 13 v. ORDER 14 HLA WIN, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 18 U.S.C. § 1983. Pending before the court is plaintiff’s motion for the appointment of counsel 19 (ECF No. 3). 20 The United States Supreme Court has ruled that district courts lack authority to 21 require counsel to represent indigent prisoners in § 1983 cases. See Mallard v. United States Dist. 22 Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the court may request the 23 voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). See Terrell v. Brewer, 935 24 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 25 A finding of “exceptional circumstances” requires an evaluation of both the likelihood of success 26 on the merits and the ability of the plaintiff to articulate his claims on his own in light of the 27 complexity of the legal issues involved. See Terrell, 935 F.2d at 1017. Neither factor is 28 dispositive and both must be viewed together before reaching a decision. See id. In Terrell, the 1 | Ninth Circuit concluded the district court did not abuse its discretion with respect to appointment 2 | of counsel because: 3 ... Terrell demonstrated sufficient writing ability and legal knowledge to articulate his claim. The facts he alleged and the issues he raised were not 4 of substantial complexity. The compelling evidence against Terrell made it 5 extremely unlikely that he would succeed on the merits. 6 Id. at 1017. 7 Plaintiff states that the appointment of counsel is warranted because he can “barely 8 | read.” ECF No. 3. According to plaintiff, he obtained the assistance of another inmate in 9 | preparing his motion. See id. 10 In the present case, the court does not at this time find the required exceptional 11 | circumstances. Despite plaintiffs assertion he cannot read, the record reflects that plaintiff has 12 | been able to read and understand the court’s July 19, 2019, screening order sufficiently to make a 13 || reasoned and articulate response. See ECF No. 12. There is no indication plaintiff required 14 | assistance in preparing his response. Further, the Eighth Amendment claims raised in this case 15 | are not novel in terms of the law or facts. Finally, at this stage of the proceedings and on the 16 | current record, the court cannot make any assessment of the likelihood of success on the merits. 17 Accordingly, IT IS HEREBY ORDERED that plaintiffs request for the 18 || appointment of counsel (ECF No. 3) is denied. 19 20 21 Dated: August 13, 2019 Sx