(PC) Henderson v. Lizzaraga ( 2019 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CURTIS LEE HENDERSON, SR., No. 2:18-CV-2181-JAM-DMC-P 12 Plaintiff, 13 v. ORDER 14 JOE LIZZARAGA, 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 is plaintiff’s renewed motion for the appointment of 19 counsel (ECF No. 32). 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 In the present case, the court does not at this time find the required exceptional 8 | circumstances. Plaintiff argues appointment of counsel is warranted because he has demonstrated 9 | that the likelihood of success on the merits is “so great.” Plaintiff also states the issues are 10 | complex. Additionally, plaintiff states that he is unable to articulate his claims on his own 11 | because due to physical injuries suffered as a result of defendants’ alleged conduct in this case. 12 | As to the likelihood of success on the merits, notwithstanding plaintiffs characterization of the 13 | case the court finds that plaintiff has not demonstrated any particular likelihood of a judgment in 14 | his favor, nor can he at this stage of the proceedings before an answer has been filed or any 15 || discovery has been conducted. Further, as the court stated in its prior order denying counsel, it is 16 | unclear at this time whether the issues involved in this case are either factually or legally 17 | complex, though in this regard the court observes that plaintiffs constitutional claims are not 18 | novel. 19 Accordingly, IT IS HEREBY ORDERED that plaintiffs request for the 20 || appointment of counsel (ECF No. 32) is denied. 21 22 | Dated: September 27, 2019 Sx