(PC) Puckett v. Agboli ( 2021 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DURRELL ANTHONY PUCKETT, No. 2:14-CV-02776-JAM-DMC-P 12 Plaintiff, 13 v. ORDER 14 A. AGBOLI, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action under 42 18 U.S.C. § 1983. Pending before the Court is Plaintiff fifth motion for the appointment of counsel. 19 ECF No. 120. 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 | United States Court of Appeals for the Ninth Circuit concluded the district court did not abuse its 2 | discretion with respect to appointment 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 Here, Plaintiff contends that he requires counsel because “a lawyer has more 8 || resources at contacting witnesses, knowing what to say at trial in regards to objections, plus they 9 | know the law.” ECF No. 120. Plaintiff has not established the required exceptional 10 || circumstances. A review of the docket indicates that Plaintiff has been able to articulate his 11 claims on his own. He has filed motions and responsive pleadings and has adequately followed 12 | deadlines. Furthermore, at this stage of the case, the Court cannot say that Plaintiff has 13 | established a particular likelihood of success on the merits. Finally, Plaintiff alleges 14 | straightforward constitutional violations, including Eighth Amendment excessive force claims. 15 | The factual and legal issues involved in this case are thus not unusually complex. 16 Accordingly, IT IS HEREBY ORDERED that Plaintiff's fifth motion for 17 | appointment of counsel, ECF No. 120, is denied. 18 19 | Dated: December 28, 2021 20 DENNIS M. COTA 21 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28