(PC) Cantrell v. Tyson ( 2020 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DONNIE LUCKY CANTRELL, No. 2:19-CV-1192-DMC-P 12 Plaintiff, 13 v. ORDER 14 S. TYSON, 15 Defendant. 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 motion for the appointment of counsel 19 (ECF No. 15). 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 states that the appointment of counsel is warranted because he is 9 | indigent, the issues involved in the case are complex, and plaintiff is incarcerated with limited law 10 | library access. See ECF No. 15, pg. 1. The court finds these circumstances to be the norm for 11 | prisoner litigants and not “exceptional.” Further, contrary to plaintiff's contention, the factual 12 | and legal issues involved in resolving plaintiff's Eighth Amendment safety claims against 13 | defendants are not complex. Next, a review of the docket reflects that plaintiff has been able to 14 | articulate his claims on his own. Specifically, plaintiff's complaint has been found appropriate 15 | for service and defendants have answered. Finally, at this early stage of the proceedings, the 16 || court cannot say that plaintiff has demonstrated any likelihood he will prevail on the merits. 17 Accordingly, IT IS HEREBY ORDERED that plaintiffs request for the 18 | appointment of counsel (ECF No. 15) is denied. 19 20 | Dated: February 13, 2020 1 DENNIS M. COTA 7 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28