(PC) Rogers v. Netherby ( 2020 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MAURCIE DIAUNDRA ROGERS, No. 2:20-CV-1478-DTLN-MC-P 12 Plaintiff, 13 v. ORDER 14 WILLIAM NETHERBY, 15 Defendant. 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 are Plaintiff’s motions for the appointment of 19 counsel. See ECF Nos. 9 and 10. 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 motions, plaintiff states that appointment of counsel is warranted because 9 | he is indigent. This is not an exceptional circumstance. Further, a review of the record reflects 10 | that Plaintiffis able to articulate himself sufficiently. Finally, a review of Plaintiff's complaint 11 || suggests that his claims may not be cognizable because he is challenging the fact or duration of 12 | his confinement and not the conditions of his confinement. 13 Accordingly, IT IS HEREBY ORDERED that plaintiffs requests for the 14 || appointment of counsel (ECF Nos. 9 and 10) are denied. 15 16 | Dated: October 19, 2020 Ssvcqo_ M7 DENNIS M. COTA 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28