(PC) Geray v. Shafer ( 2019 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JASON GERAY, No. 2:18-CV-2787-KJM-DMC-P 12 Plaintiff, 13 v. ORDER 14 JENNIFER SHAFER, 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. 38). 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. In his motion, plaintiff cites the following reasons warranting the appointment of 9 | counsel: (1) he is unable to afford counsel; and (2) he is incarcerated. Neither situation is 10 || exceptional. To the contrary, both are common to almost all prison inmates. Moreover, plaintiff 11 | has exhibited an ability to articulate himself adequately in light of the due process claims alleged, 12 || which are neither factually nor legally complex. In particular, the court observes plaintiffs 13 | opposition to defendants’ motion to dismiss was well-organized, well-reasoned, and well-written. 14 | See ECF No. 22. Finally, for the reasons outlined in the court’s July 1, 2019, findings and 15 || recommendations, in which the court recommends plaintiff's complaint be dismissed without 16 || leave to amend, plaintiff is not likely to succeed on the merits. 17 Accordingly, IT IS HEREBY ORDERED that plaintiffs request for the 18 || appointment of counsel (ECF No. 38) is denied. 19 20 | Dated: September 6, 2019 1 DENNIS M. COTA 7 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28