(PC) Washington v. Kuersten ( 2019 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WILLIAM NATHANIEL No. 2:15-CV-2302-MCE-DMC-P WASHINGTON, 12 Plaintiff, 13 ORDER v. 14 M. KUERSTEN, 15 Defendant. 16 17 18 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 19 42 U.S.C. § 1983. Pending before the court is plaintiff’s motion for the appointment of counsel 20 (ECF No. 63). 21 The United States Supreme Court has ruled that district courts lack authority to 22 require counsel to represent indigent prisoners in § 1983 cases. See Mallard v. United States Dist. 23 Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the court may request the 24 voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). See Terrell v. Brewer, 935 25 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 26 A finding of “exceptional circumstances” requires an evaluation of both the likelihood of success 27 on the merits and the ability of the plaintiff to articulate his claims on his own in light of the 28 complexity of the legal issues involved. See Terrell, 935 F.2d at 1017. Neither factor is 1 | dispositive and both must be viewed together before reaching a decision. See id. In Terrell, the 2 | Ninth Circuit concluded the district court did not abuse its discretion with respect to appointment 3 | of counsel because: 4 ... Terrell demonstrated sufficient writing ability and legal knowledge to articulate his claim. The facts he alleged and the issues he raised were not 5 of substantial complexity. The compelling evidence against Terrell made it 6 extremely unlikely that he would succeed on the merits. 7 Id. at 1017. 8 In the present case, the court does not at this time find the required exceptional 9 | circumstances. Plaintiff argues appointment of counsel is warranted because he has demonstrated 10 | alikelihood of success on the merits of his Eighth Amendment medical care claim. The court 11 | does not agree. As explained in the court’s February 4, 2019, findings and recommendations 12 | denying plaintiff's motion for summary judgment, which have been adopted by the District 13 || Judge, disputed issues of material fact remain for trial. While plaintiff certainly has some 14 | likelihood that he will prevail, whether he is more likely than not to prevail has not been 15 | established. Moreover, a review of the record reflects that plaintiff has been able to sufficiently 16 || articulate his claims, which are neither legally nor factually complex. 17 Accordingly, IT IS HEREBY ORDERED that plaintiffs request for the 18 || appointment of counsel (ECF No. 63) is denied. 19 20 | Dated: September 27, 2019 1 DENNIS M. COTA 27 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28