(PC) Cantrell v. Tyson ( 2021 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DONNIE LUCKY CANTRELL, No. 2:19-CV-01192-TLN-DMC-P 12 Plaintiff, 13 v. ORDER 14 S. TYSON, 15 Defendant. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action. Pending 18 before the Court is Plaintiff’s motion, ECF No. 47, for the appointment of counsel. 19 The United States Supreme Court has ruled that district courts lack authority to 20 require counsel to represent indigent prisoners in civil rights cases. See Mallard v. United States 21 Dist. Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the court may 22 request the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). See Terrell v. 23 Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 24 (9th Cir. 1990). A finding of “exceptional circumstances” requires an evaluation of both the 25 likelihood of success on the merits and the ability of the plaintiff to articulate his claims on his 26 own in light of the complexity of the legal issues involved. See Terrell, 935 F.2d at 1017. 27 Neither factor is dispositive and both must be viewed together before reaching a decision. See id. 28 In Terrell, the Ninth Circuit concluded the district court did not abuse its discretion with respect 1 | 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 3 of substantial complexity. The compelling evidence against Terrell made it 4 extremely unlikely that he would succeed on the merits. 5 Id. at 1017. 6 In the present case, the Court does not at this time find the required exceptional 7 | circumstances. According to Plaintiff, appointment of counsel is warranted because: (1) he 8 | cannot afford to retain counsel; (2) Plaintiff has limited knowledge of the law; (3) Plaintiff has no 9 | law library access due to COVID-19 restrictions; (4) Plaintiff has a limited ability to litigate; and 10 | (5) Plaintiff has successfully surpassed the summary judgment phase. See ECF No. 47, pg. 1. 11 | These circumstances are generally common among prisoners and are not the types of exceptional 12 || circumstances necessary for the appointment of counsel. Plaintiffs filings suggest a sufficient 13 | ability to litigate and articulate his claims. Finally, Plaintiff has not argued the likelihood of 14 || success on the merits. While Plaintiff has made cognizable claims and passed summary judgment 15 | thus far, these steps are not dispositive as to Plaintiff's likelihood of success. 16 Accordingly, IT IS HEREBY ORDERED that Plaintiffs request for the 17 | appointment of counsel, ECF No. 47, is denied. 18 19 | Dated: November 5, 2021 20 DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28