(PC) Rogers v. Netherby ( 2021 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MAURICE DiAUNDRA ROGERS, No. 2:20-CV-1478-DTLN-MC-P 12 Plaintiff, 13 v. ORDER 14 WILLIAM NETHERBY, 15 Defendant. 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 third motion for the appointment of 19 counsel. See ECF No. 14. 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. In his motions, plaintiff states that appointment of counsel is warranted because 9 | he is indigent and incarcerated. See ECF No. 14, pg. 1. These are not exceptional circumstances. 10 || Further, a review of the record reflects that Plaintiff is able to articulate himself sufficiently. 11 | Finally, the Court cannot say at this early stage of the proceedings, before the complaint has even 12 || been served, that Plaintiff has a likelihood of success on the merits. 13 Accordingly, IT IS HEREBY ORDERED that plaintiff's motion for the 14 | appointment of counsel, ECF No. 14, is denied. 15 16 | Dated: March 23, 2021 Ssvcqo_ M7 DENNIS M. COTA 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28