(PC) Owens v. Banuelos ( 2021 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 THEON OWENS, No. 2:19-CV-1683-MCE-DMC-P 12 Plaintiff, 13 v. ORDER 14 D. BANUELOS, 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. 31. 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 extremely unlikely that he would succeed on the merits. 5 Id. at 1017. 6 7 In the present case, the Court does not at this time find the required exceptional 8 circumstances. Plaintiff contends the following factors warrant appointment of counsel: 9 a. He is incarcerated. 10 b. He reads at a fifth-grade level and requires special accommodations to achieve effective communications. 11 c. Without special accommodation, he may struggle to understand. 12 d. His complaint is complex in that it raises a number of legal claims 13 against a number of defendants. 14 e. The complaint alleges excessive force, which may require a “use of force expert.” 15 f. The case will require a considerable amount of discovery. 16 g. He has limited access to certain documents, including peace officer 17 records. 18 h. There may be conflicting testimony. 19 i. He does not have a GED or high school diploma. 20 j. He has been relocated to a different institution and cannot interview witnesses to the incident alleged in the complaint. 21 k. He is currently diagnosed with a “serious mental disorder” and is 22 currently taking “several different medications. . . .” 23 l. He does not know the local rules of court or the Federal Rules of Civil Procedure. 24 m. Defendants are represented by experienced counsel. 25 n. He will suffer prejudice in the presentation of his case absent 26 appointed counsel. 27 o. He has stated cognizable claims. 28 p. He is indigent. 1 q. He is likely to prevail on the merits and is unable to articulate himself. 2 ECF No. 31, pgs. 10-14. 3 | With his motion, Plaintiff has submitted documentation indicating that, as of May 2020, Plaintiff 4 | has bipolar disorder and that the prison considers Plaintiff significantly impaired. See id. at 75. 5 With the exception of Plaintiff's mental health issues, the factors cited by Plaintiff 6 || are common to most inmates and, thus, are not extraordinary. Additionally, the Court finds that, 7 | despite Plaintiff's mental health issues, he has been able to clearly articulate himself, as g | evidenced by the extensive motion for counsel currently before the Court. Further, contrary to g | Plaintiffs contention, the legal and factual issues in this case do not appear overly complex. 10 | There is no indication at this point that the case will require a considerable amount of discovery. 11 As to Plaintiffs mental health issues, while documentation submitted with the 12 || motion supports Plaintiff's contention that he does in fact suffer from mental health problems, 13 || specifically bipolar disorder, Plaintiff has not established the degree of limitation imposed by this 14 | condition. Notably, documentation attached to the current motion indicates that he is being 15 || provided reasonable accommodations by prison officials. Thus far in the litigation, it appears the 16 || accommodations provided have allowed Plaintiff to complete filings on time and in a cogent way. 17 Accordingly, IT IS HEREBY ORDERED that Plaintiff's request for the 18 | appointment of counsel, ECF No. 31, is denied. 19 9 | Dated: September 14, 2021 21 DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28