(PC) Bryant v. Kibler ( 2021 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KEVIN BRYANT, No. 2:21-CV-0060-DMC-P 12 Plaintiff, 13 v. ORDER 14 BRIAN KIBLER, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action under 42 18 U.S.C. § 1983. Before the Court is Plaintiff’ motion for appointment of counsel. ECF No. 3. 19 The United States Supreme Court has ruled that district courts lack authority to 20 require counsel to represent indigent prisoners in § 1983 cases. See Mallard v. United States Dist. 21 Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the court may request the 22 voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). See Terrell v. Brewer, 935 23 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 24 A finding of “exceptional circumstances” requires an evaluation of both the likelihood of success 25 on the merits and the ability of the plaintiff to articulate his claims on his own in light of the 26 complexity of the legal issues involved. See Terrell, 935 F.2d at 1017. Neither factor is 27 dispositive, and both must be viewed together before reaching a decision. See id. In Terrell, the 28 United States Court of Appeals for the Ninth Circuit concluded the district court did not abuse its 1 | discretion with respect to appointment of counsel because: 2 Terrell demonstrated sufficient writing ability and legal knowledge to articulate his claim. The facts he alleged and the issues he raised were not of 3 substantial complexity. The compelling evidence against Terrell made it 4 extremely unlikely that he would succeed on the merits. 5 Id. at 1017. 6 Here, Plaintiff contends only that he requires counsel because he is indigent and 7 | unable to afford counsel. ECF No. 3. He desires counsel to protect his interests. Id. 8 The Court is cognizant of the difficulties of litigating from prison and is 9 || sympathetic to Plaintiffs inability to afford an attorney. The Court, however, does not find 10 | exceptional circumstances warranting a request by the Court for voluntary assistance of counsel. 11 || Review of the docket indicates that Plaintiff has been able to articulate his claims on his own. He 12 | has filed multiple motions that sufficiently and coherently outline his requested relief. 13 | Furthermore, at this stage of the case, the Court cannot say that Plaintiff has established a 14 | particular likelihood of success on the merits. Finally, Plaintiff alleges fairly straightforward 15 | Eighth Amendment claims due to the alleged negligence of prison officials in handling the 16 || COVID-19 pandemic. See ECF No. |. The factual and legal issues involved in this case are not 17 | unusually complex. Plaintiffs motion for appointment of counsel is DENIED. 18 IT IS SO ORDERED. 19 20 | Dated: January 21, 2021 = 3S Co 1 DENNIS M. COTA 2 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28