(PC) Solomon v. Sheldon ( 2020 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TIMOTHY SOLOMON, No. 2:18-CV-3012-JAM-DMC-P 12 Plaintiff, 13 v. ORDER 14 JONATHAN SHELDON, 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 second motion, ECF No. 63, for the 19 appointment of counsel. 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 following factors warrant appointment of counsel: 9 | (1) indigency; (2) extended lock-down; (3) complexity of issues; and (4) inability to retain 10 || counsel. See ECF No. 63. The Court does not find these circumstances exceptional. A review of 11 | the docket reflects that Plaintiff has been able to sufficiently articulate his claims on his own. 12 | Further, at this stage of the proceedings, the Court cannot say that Plaintiff has established any 13 | particular likelihood of success on the merits. Finally, contrary to Plaintiff's suggestion, the 14 | factual and legal issues involved in this case, which presents an Eighth Amendment excessive 15 | force claim, are not complex. 16 Accordingly, IT IS HEREBY ORDERED that Plaintiff's second motion for the 17 | appointment of counsel, ECF No. 63, is denied. 18 19 | Dated: November 18, 2020 20 DENNIS M. COTA 21 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28