(PC) Merriman v. Martin ( 2020 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DOMINIQUE MERRIMAN, No. 2:19-CV-2486-DMC-P 12 Plaintiff, 13 v. ORDER 14 SAN JOAQUIN COUNTY, 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 second motion for the appointment of 19 counsel, ECF No. 13. 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. According to Plaintiff, appointment of counsel is warranted because: (1) he is 9 | incarcerated; (2) he is indigent; (3) the issues involved in his case are complex; and (4) he has 10 | mental health issues. These are common and not particularly exceptional circumstances. As to 11 | Plaintiffs mental health issues, plaintiff has not offered any evidence suggesting the level of 12 | disability, if any, caused by such issues. While Plaintiff has provided a mental health evaluation, 13 | that record is from 1986 and reflects that, at that time, Plaintiff's mental impairments did not 14 | result in functional disabilities. A review of the docket reflects that Plaintiff has thus far been 15 | able to articulate his claims. Contrary to Plaintiffs statement, the legal and factual issues 16 | involved in this case, which primarily involves a claim of sexual assault by a staff member in 17 | violation of the Eighth Amendment, are not complex. Finally, at this stage of the proceedings 18 | before the complaint has been served, before an answer has been filed, before discovery has been 19 | conducted, and before any dispositive motions have been filed, the Court cannot say that Plaintiff 20 | has demonstrated any particular likelihood of success on the merits. 21 Accordingly, IT IS HEREBY ORDERED that Plaintiff's second motion for the 22 | appointment of counsel, ECF No. 13, is denied. 23 24 | Dated: October 30, 2020 Sx