(PC) Merino v. Vuong ( 2021 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FRANCISCO MERINO, No. 2:21-CV-0826-KJM-DMC-P 12 Plaintiff, 13 v. ORDER 14 VIVIAN VUONG, 15 Defendant. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action under 42 18 U.S.C. § 1983. Pending before the Court are Plaintiff’s motions, ECF Nos. 11 and 12, 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 “Terrell demonstrated sufficient writing ability and legal knowledge to 3 | articulate his claim. The facts he alleged and the issues he raised were not of substantial 4 | complexity. The compelling evidence against Terrell made it extremely unlikely that he would 5 | succeed on the merits.” Id. at 1017. 6 In the present case, the Court does not at this time find the required exceptional 7 | circumstances. Plaintiff has made two (2) motions for appointment of counsel. See ECF Nos. 11 8 | and 12. Plaintiff moves for appointment of counsel because he does not have any primary or 9 | secondary education, is blind in the left eye, has glaucoma in the right eye, and his primary 10 | language is Spanish. See ECF Nos. 11 and 12. 11 However, despite the disabilities mentioned above, Plaintiff writes in full English 12 || sentences with logical organization. See ECF Nos. 1-20. Plaintiff also provides some Eighth 13 | Amendment analysis in his first amended complaint. See ECF No. 18. Plaintiff clearly 14 | demonstrates sufficient writing ability and legal knowledge to articulate his claim. Plaintiff's 15 || alleged facts and the legal issues involved are not of substantial complexity—Plaintiff alleges he 16 || was not treated for a medical condition in violation of the Eighth Amendment. The Court cannot 17 | say that Plaintiff has established a particular likelihood of success on the merits at the present 18 | stage of this case. 19 Accordingly, IT IS HEREBY ORDERED that Plaintiff's requests for the 20 | appointment of counsel, ECF Nos. 11 and 12, are denied. 21 22 | Dated: October 13, 2021 Sx