(PC) Cervantes v. Lee ( 2021 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RAUL CERVANTES, No. 2:20-CV-2416-DMC-P 12 Plaintiff, 13 v. ORDER 14 DERRECK J. LEE, 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’s motion for appointment of counsel. ECF No. 12. 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 extremely unlikely that he would succeed on the merits. 4 5 Id. at 1017. 6 Plaintiff moves for appointment of counsel because his case will require 7 investigation that he cannot undertake in prison, because his case requires examination of witness 8 credibility, and because expert witnesses will be necessary. ECF No. 12 at 1. He also indicates 9 that the Court should appoint counsel because he is the victim of retaliation and conspiracy at the 10 hands of prison officials and the California Department of Justice. Id. at 1–2. Plaintiff argues that 11 prisons officials have charged him double for filings and that the Department of Justice retaliated 12 against him for filing a lawsuit. Id. 13 The Court recognizes the unique difficulties of litigating from prison. There is no 14 doubt that limitations on prisoners’ ability to investigate their case and prepare witnesses hinder 15 seamless trial practice. The Court, however, does not find exceptional circumstances warranting a 16 request by the Court for assistance of counsel. Plaintiff’s inability to investigate his case as easily 17 as he would like is a circumstance attendant to his own incarceration and that of numerous other 18 similarly situated prisoners. Plaintiff’s mere allegations of conspiracy and retaliation—stemming 19 from the causes of action in his underlying complaint—do not establish exceptional 20 circumstances warranting appointment of counsel. 21 Plaintiff, moreover, has filed multiple motions and submissions with the Court 22 that, although meandering, effectively state his requested relief. Review of the docket indicates 23 that Plaintiff has been able to articulate his claims on his own. Moreover, Plaintiff alleges fairly 24 straightforward First Amendment claims in his complaint. See ECF No. 1. The factual and legal 25 issues involved in this case are not unusually complex. 26 /// 27 /// 28 /// 1 Furthermore, the Court has not yet screened Plaintiff's complaint under 28 U.S.C. 2 | § 1915A or ordered the complaint served on defendants. The Court cannot say that Plaintiff has 3 || established a particular likelihood of success on the merits at the present stage of this case. 4 Plaintiffs motion for appointment of counsel (ECF No. 12) is DENIED. 5 IT IS SO ORDERED. 6 7 | Dated: February 4, 2021 SS GC 8 DENNIS M. COTA 9 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28