(PC) Hopper v. Newsom ( 2023 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DOUGLAS L. HOPPER, No. 2:20-CV-1802-KJM-DMC-P 12 Plaintiff, 13 v. ORDER 14 GAVIN NEWSOM, 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, ECF No. 33, for the 19 appointment of counsel. 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. ‘ Id. at 1017. 7 In the present case, the Court does not at this time find the required exceptional 8 | circumstances. Plaintiff states that appointment of counsel is warranted because he has a vision 9 || impairment and has been experiencing difficulties access equipment in the prison law library for 10 || use by inmates with vision impairments. See ECF No. 33. While unusual, these circumstances 11 || are not exceptional. The Court has been able to accommodate Plaintiff's issues with various 12 || extensions of time. Further, as Plaintiff has not yet submitted a second amended complaint 13 || appropriate for service, the Court cannot say that Plaintiff has at this time demonstrated any 14 | particular likelihood of success on the merits. Finally, despite Plaintiffs vision impairment, the 15 || docket reflects that he has been able to articulate his claims on his own. 16 Accordingly, IT IS HEREBY ORDERED that Plaintiff's request for the 17 || appointment of counsel, ECF No. 33, is denied. 18 | Dated: February 15, 2023 Co 19 DENNIS M. COTA 20 UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28