(PC) Petillo v. Baughman ( 2020 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SIDNEY PETILLO, No. 2:19-CV-0667-TLN-DMC-P 12 Plaintiff, 13 v. ORDER 14 HAINEY, 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 are: (1) Plaintiff’s motion for the appointment of 19 counsel, ECF No. 55; and (2) Plaintiff’s “motion” for referral of this matter to the Court’s 20 alternative dispute resolution program, ECF No. 56. 21 The United States Supreme Court has ruled that district courts lack authority to 22 require counsel to represent indigent prisoners in § 1983 cases. See Mallard v. United States Dist. 23 Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the court may request the 24 voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). See Terrell v. Brewer, 935 25 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 26 A finding of “exceptional circumstances” requires an evaluation of both the likelihood of success 27 on the merits and the ability of the plaintiff to articulate his claims on his own in light of the 28 complexity of the legal issues involved. See Terrell, 935 F.2d at 1017. Neither factor is 1 | dispositive and both must be viewed together before reaching a decision. See id. In Terrell, the 2 | Ninth Circuit concluded the district court did not abuse its discretion with respect to appointment 3 | of counsel because: 4 ... Terrell demonstrated sufficient writing ability and legal knowledge to articulate his claim. The facts he alleged and the issues he raised were not 5 of substantial complexity. The compelling evidence against Terrell made it 6 extremely unlikely that he would succeed on the merits. 7 Id. at 1017. 8 In the present case, the Court does not at this time find the required exceptional 9 | circumstances. A review of the docket reflects that Plaintiff has been able to articulate his claims 10 | and the Court has determined the action is appropriate for service. Further, the legal issues in this 11 || case — excessive force and improper strip-search — are neither legal nor factually complex. 12 | Finally, at this stage of the proceedings before discovery has been completed, the Court cannot 13 | find that Plaintiff has any particular likelihood of success on the merits. Plaintiff's motion for the 14 | appointment of counsel will be denied. 15 Plaintiff has also filed a purported stipulation for referral of this matter to the 16 | Court’s Voluntary Dispute Resolution Program. The stipulation is rejected because it has not 17 || been signed by counsel for Defendants. Should counsel for Defendants agree to participation in 18 | alternative dispute resolution, the Court will entertain a properly executed stipulation to that 19 | effect. 20 Accordingly, IT IS HEREBY ORDERED that: 21 1. Plaintiff's request for the appointment of counsel, ECF No. 55, is denied; 22 2. Plaintiff's “stipulation” for referral to the Court’s alternative dispute 23 | resolution program, ECF No. 56, is rejected; and 24 3. The Clerk of the Court is directed to terminate ECF No. 56 as a pending 25 || motion. 26 | Dated: October 30, 2020 Sx