(PC) Davis v. Hutcheson ( 2020 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DON ANGELO DAVIS, No. 2:20-CV-0077-DMC-P 12 Plaintiff, 13 v. ORDER 14 HUTCHESON, 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 motion for the appointment of counsel 19 (ECF No. 5). 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 wOASe 2 OU EOIN MUO IR er AY OT 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. According to plaintiff, appointment of counsel is warranted because: (1) he is 9 | indigent; (2) his incarceration limits his access to legal research; and (3) plaintiff is a layman at 10 || the law. The Court finds these circumstances to be common among prisoners pursuing civil 11 litigation in federal court, not exceptional. Further, a review of the docket reflects that plaintiff 12 | has so far been able to articulate himself reasonably well. Additionally, the legal and factual 13 | issues in this case are not complex. Finally, at this stage of the proceedings before the complaint 14 | has been ordered served, before any answer has been filed, before any discovery had been 15 || conducted, and before any dispositive motions have been filed, the Court cannot say that plaintiff 16 | has any particular likelihood of success on the merits. 17 Accordingly, IT IS HEREBY ORDERED that plaintiffs request for the 18 || appointment of counsel (ECF No. 5) is denied. 19 20 21 | Dated: June 5, 2020 Sx