(PC) Flores v. Johnson ( 2019 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 NICHOLAUS D. FLORES, No. 2:19-CV-0314-JAM-DMC-P 12 Plaintiff, 13 v. ORDER 14 J. JOHNSON, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Pending before the court are: (1) plaintiff’s motion for modification of the 19 August 2, 2019, scheduling order (ECF No. 23); and (2) plaintiff’s motion for the appointment of 20 counsel (ECF No. 22). 21 On August 2, 2019, the court issued a scheduling order permitting the parties to 22 conduct discovery through December 9, 2019. See ECF No. 20. In his motion for modification 23 of the scheduling order, plaintiff seeks an extension of time to conduct discovery to December 9, 24 2019. Because discovery has been permitted through this date, plaintiff’s motion will be denied 25 as unnecessary. 26 / / / 27 / / / 28 / / / 1 Turning to plaintiff’s motion for the appointment of counsel, the United States 2 Supreme Court has ruled that district courts lack authority to require counsel to represent indigent 3 prisoners in § 1983 cases. See Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In 4 certain exceptional circumstances, the court may request the voluntary assistance of counsel 5 pursuant to 28 U.S.C. § 1915(e)(1). See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); 6 Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). A finding of “exceptional 7 circumstances” requires an evaluation of both the likelihood of success on the merits and the 8 ability of the plaintiff to articulate his claims on his own in light of the complexity of the legal 9 issues involved. See Terrell, 935 F.2d at 1017. Neither factor is dispositive and both must be 10 viewed together before reaching a decision. See id. In Terrell, the Ninth Circuit concluded the 11 district court did not abuse its discretion with respect to appointment of counsel because: 12 . . . Terrell demonstrated sufficient writing ability and legal knowledge to articulate his claim. The facts he alleged and the issues he raised were not 13 of substantial complexity. The compelling evidence against Terrell made it extremely unlikely that he would succeed on the merits. 14 Id. at 1017. 15 16 In the present case, the court does not at this time find the required exceptional 17 circumstances. Plaintiff argues that appointment of counsel is warranted because he is indigent 18 and incarcerated. At the outset, the court observes these are not exceptional circumstances but are 19 circumstances common to almost every prisoner litigant. Second, a review of the docket reflects 20 plaintiff has been able to articulate his claims, which are neither factually nor legally complex. 21 Finally, at this stage of the proceedings before discovery has been completed or any dispositive 22 motions have been filed, plaintiff has not demonstrated any particular likelihood of success on the 23 merits. 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 Accordingly, IT IS HEREBY ORDERED that; 2 1. Plaintiff's motion for modification of the scheduling order (ECF No. 23) is 3 | denied as unnecessary; and 4 2. Plaintiffs request for the appointment of counsel (ECF No. 22) is denied. 5 6 || Dated: September 25, 2019 Ssvcqo_ 7 DENNIS M. COTA g UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28