(PC) Rood v. Swarthout ( 2020 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD V. ROOD, No. 2:13-CV-0478-JAM-DMC-P 12 Plaintiff, 13 v. ORDER 14 GARY SWARTHOUT, 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 third motion for the appointment of 19 counsel (ECF No. 61). 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 extremely unlikely that he would succeed on the merits. ° Id. at 1017. 6 7 In the present case, the court does not at this time find the required exceptional 8 || circumstances. Plaintiff cites the following reasons supporting the appointment of counsel: (1) he 9 || is indigent; (2) prior requests for counsel were denied without prejudice; and (3) plaintiff is 10 | incarcerated with limited law library access. These circumstances are not exception but represent 11 | the norm for most prisoner litigants. Moreover, at this stage of the proceedings before discovery 12 | has been completed and before any dispositive motions have been filed, it cannot be said that 13 | plaintiff has demonstrated any particular likelihood of success on the merits. Finally, a review of 14 | the file in this case reflects that plaintiff is able to articulate his claims, which are neither factually 15 | nor legally complex. 16 Accordingly, IT IS HEREBY ORDERED that plaintiff's request for the 17 | appointment of counsel (ECF No. 61) is denied. 18 19 20 | Dated: February 12, 2020 Sse 21 : 22 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28