(PC) Rice v. Boulware ( 2021 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROYLAND RICE, No. 2:20-CV-1752-KJM-DMC-P 12 Plaintiff, 13 v. ORDER 14 A.W. BOULWARE, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action. Pending 18 before the Court is Plaintiff’s motion, ECF No. 15, 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) he is 8 | indigent; (2) he has been granted in forma pauperis status; (3) he is incarcerated; (4) a trial will 9 | likely involve conflicting testimony; and (5) he has been unable to retain counsel. See ECF No. 10 15, pgs. 1-2. These are not exceptional circumstances. To the contrary, they are common among 11 | inmate litigants. Further, a review of the docket reflects that Plaintiff is able to articulate his 12 | claims on his own. Additionally, the legal and factual issues involved in this case, which asserts a 13 | denial of access to the courts in violation of the First Amendment, are not overly complex. 14 | Finally, at this early stage of the proceedings before any defendant has responded to the 15 | complaint, the Court cannot say that Plaintiff has demonstrated any particular likelihood of 16 || success on the merits. 17 Accordingly, IT IS HEREBY ORDERED that Plaintiffs request for the 18 | appointment of counsel, ECF No. 15, is denied. 19 20 | Dated: April 13, 2021 1 DENNIS M. COTA 7 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28