(PC) Smith v. Diez ( 2023 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LARRY SMITH, No. 2:20-CV-0071-DAD-DMC-P 12 Plaintiff, 13 v. ORDER 14 CONNIE GIPSON, 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. 58. 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 argues appointment of counsel is warranted because: (1) he recently 9 || underwent an emergency procedure on his back; (2) he does not understand how to respond to 10 || Defendants’ pending motion or summary judgment; (3) he was recently transferred to another 11 || prison; and (4) he is confined to a wheelchair as a result of recent surgery. See ECF No. 58. 12 || While the combination of circumstances is unusual, they are not exceptional in that they are, at 13 | least individually, common among many inmates. Moreover, the docket reflects that, to date, 14 | Plaintiff has been able to articulate his claims and arguments. Next, the Court does not find that 15 || the facts or law related to Plaintiffs case are overly complicated. Finally, with a motion for 16 || summary judgment pending, the Court cannot say that Plaintiff has established a likelihood of 17 || success on the merits. 18 Accordingly, IT IS HEREBY ORDERED that Plaintiff's request for the 19 || appointment of counsel, ECF No. 58, is denied. 20 21 | Dated: February 27, 2023 Co 22 DENNIS M. COTA 3 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28