(PC) Henderson v. Lizzaraga ( 2021 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CURTIS LEE HENDERSON, SR., No. 2:18-CV-2181-JAM-DMC-P 12 Plaintiff, 13 v. ORDER 14 JOE LIZZARAGA, 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 fourth motion for the appointment of 19 counsel, ECF No. 115. 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 that he is entitled to appointment of counsel because it is not 9 | trained in the law, the issues in the case are complex, and he has a likelihood of success on the 10 | merits. See ECF No. 115. While the Court has found that there are triable issues of fact to 11 | proceed to trial, see ECF No. 108 (order adopting findings and recommendations and denying 12 || summary judgment in part), Plaintiff has not demonstrated that he is likely to succeed at trial. 13 | Further, a review of the docket and Plaintiff's filings to date indicates that Plaintiff is able to 14 | articular himself clearly on his own. Finally, contrary to Plaintiffs assertion, the Court does not 15 | find that the legal or factual issues in this case are particularly complex. 16 Accordingly, IT IS HEREBY ORDERED that Plaintiff's request for the 17 | appointment of counsel, ECF No. 115, is denied. 18 19 | Dated: August 25, 2021 20 DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28