(PC) Thompson v. Omari ( 2020 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANDRE LaSHAUN THOMPSON, No. 2:19-CV-2565-DMC-P 12 Plaintiff, 13 v. ORDER 14 WARDEN, 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. 8). 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 wOAOe 2 LUV VEGI MINIS REVUE OIC eA ev 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. According to plaintiff, counsel should be appointed to assist him because he is 9 | receiving mental health care. See ECF No. 6. Plaintiff does not, however, explain the level of his 10 || mental health care, the seriousness of his mental health condition, or how his mental health 11 || treatment is precluding him from proceeding on his own. Plaintiff states that he has obtained the 12 | assistance of other inmates and does not state that he expects this assistance to end. Moreover, at 13 || this stage of the proceedings before plaintiff has filed a first amended complaint as directed in the 14 | accompanying order, and before any discovery has been conducted or any dispositive motions 15 | filed, the Court cannot say that plaintiff has shown any particular likelihood of success on the 16 | merits. Court also observes that — with inmate assistance — plaintiff has been able to articulate his 17 | claims sufficiently. Finally, plaintiff's claims appear to be neither legally nor factually complex. 18 Accordingly, IT IS HEREBY ORDERED that plaintiffs request for the 19 || appointment of counsel (ECF No. 8) is denied. 20 21 |) Dated: June 4, 2020 Sx