(PC) Duran v. Cervantes ( 2020 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSEPH DURAN, No. 2:20-CV-0320-DMC-P 12 Plaintiff, 13 v. ORDER 14 CELINE CERVANTES, 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. 9. 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. Plaintiff argues appointment of counsel is warranted because he is seeking class 9 | certification, which he cannot do pro se. See ECF No. 9, pg. 1. He also cites his incarceration 10 | and inability to obtain counsel on his own. See id. These are not exceptional circumstances. 11 | Moreover, a review of the docket reflects that Plaintiff is able to articulate his claims on his own. 12 | In this regard, the Court observes that Plaintiff's filings have been type-written, logical, and well 13 | organized. Further, as discussed in the accompanying order addressing Plaintiff's claims, the 14 | legal and factual issues concerning Plaintiff's allegation of the denial of fresh fruit are not 15 | complex and, as currently pleaded, Plaintiff has no chance of success on the merits. 16 Accordingly, IT IS HEREBY ORDERED that Plaintiffs request for the 17 | appointment of counsel, ECF No. 9, is denied. 18 19 | Dated: October 30, 2020 20 DENNIS M. COTA 21 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28