(PC)Appleby v. Farhat ( 2021 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TONY APPLEBY, No. 2:20-CV-02113-WBS-DMC-P 12 Plaintiff, 13 v. ORDER 14 ALEX FARHAT, 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. 20, 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) Plaintiff 8 || has only been able to file documents in this case with the help of a fellow inmate; (2) the fellow 9 | inmate is getting transferred; (3) no one else is likely to help Plaintiff; and (4) Plaintiff's mental 10 | and physical illnesses make him too disabled to represent himself. See ECF No. 20, pg. 2-3. 11 These circumstances are not the type of exceptional circumstances necessary for 12 | the appointment of counsel. Plaintiff's only viable argument is his mental and physical illnesses 13 | of which he provides documentation. See id. at 5-19. However, the medical documents suggest 14 | that Plaintiffs language is clear, his attention and concentration is intact, his thoughts are linear, 15 || and has normal cognition. See id. at 13-14. Additionally, it appears that Plaintiff himself 16 | articulated the allegations within the complaint. Further, Plaintiff has not made any showing of a 17 | particular likelihood of success at this early stage. 18 Accordingly, IT IS HEREBY ORDERED that Plaintiffs request for the 19 | appointment of counsel, ECF No. 20, is denied. 20 21 | Dated: November 5, 2021 Sx