(PC) Smith v. Diez ( 2021 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LARRY SMITH, No. 2:20-CV-0071-JAM-DMC-P 12 Plaintiff, 13 v. ORDER 14 RALPH DIEZ, 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 motion for the appointment of counsel, 19 ECF No. 25. 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 argues appointment of counsel is warranted because: (1) he is an inmate 9 | being treated for depression and suicidal thoughts; (2) his mental health is “not good”; (3) he 10 | cannot locate missing legal books; (4) there is limited movement between prisons; (5) there has 11 | been no law library access for over a year; and (6) there is a good chance of success on the merits. 12 | See ECF No. 25, pgs. 1-3. 13 First, despite Plaintiff's mental illness and associated treatment, the record 14 | demonstrates that Plaintiff has the ability to articulate himself on his own. Second, because 15 | Plaintiff has not yet filed an amended complaint sufficient to state cognizable claims, the Court 16 | does not find that, as present, Plaintiff has any likelihood of success on the merits. Finally, the 17 | Court does not at this time find any other exceptional circumstances which warrant the 18 || appointment of counsel 19 Accordingly, IT IS HEREBY ORDERED that Plaintiff's request for the 20 | appointment of counsel, ECF No. 25, is denied. 21 22 | Dated: March 11, 2021 Sx