(PC) Guerra v. Rosales ( 2021 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAVIER H. GUERRA, No. 2:20-CV-0836-DMC-P 12 Plaintiff, 13 v. ORDER 14 PRICILLA ROSALES, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action under 42 18 U.S.C. § 1983. Pending before the Court is Plaintiff’s second motion for the appointment of 19 counsel, ECF No. 14, filed approximately two weeks after issuance of the Court’s order denying 20 Plaintiff’s first motion for the appointment of counsel. 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 extremely unlikely that he would succeed on the merits. 6 Id. at 1017. 7 8 In denying Plaintiff’s prior motion for counsel, the Court stated: 9 . . .Plaintiff argues appointment of counsel is warranted because it is not trained in the law and he is incarcerated. These are 10 common, not exceptional, circumstances. Further, a review of Plaintiff’s filings indicates that he is able to articulate his claims, either on his own or 11 with the assistance of other inmates. Additionally, the legal and factual issues involved in this case, which appears to assert an Eighth Amendment 12 claim based on denial of medical care, are not complex. Finally, at this early stage of the proceedings before the complaint has been found 13 appropriate for service, the Court cannot say Plaintiff has established any particular likelihood of success on the merits. 14 ECF No. 13. 15 16 Plaintiff now states that an inmate who had been assisting him has now “left my Block.” ECF 17 No. 14. Plaintiff states that he does not know how to proceed. See id. 18 In the present case, the Court does not at this time find the required exceptional 19 circumstances. With the exception of issuance of an order directing service of Plaintiff’s 20 complaint, nothing has changed since the last time the Court addressed Plaintiff’s request for 21 appointment of counsel. Specifically, the complaint has not been served, no defendants have 22 answered, and, as a result, the Court cannot say that Plaintiff has any particular chance of success 23 on the merits. Moreover, to the extent Plaintiff seeks additional time for a specific deadline, the 24 Court will consider such requests as the need arises. 25 / / / 26 / / / 27 / / / 28 / / / 1 Accordingly, IT IS HEREBY ORDERED that Plaintiff's second request for the 2 | appointment of counsel, ECF No. 14, is denied. 3 4 | Dated: August 26, 2021 Ssvcqo_ 5 DENNIS M. COTA 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28