(PC) Carter v. Murphy ( 2022 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 NATHANAEL JAMES CARTER, JR., No. 2:22-CV-0291-DMC-P 12 Plaintiff, 13 v. ORDER 14 D. MURPHY, 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. 12, 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 contends appointment of counsel is warranted because he is incarcerated, 9 || indigent, and ignorant of the law. See ECF No. 12. These are common circumstances among 10 || many incarcerated litigants and do not establish exceptional circumstances. Moreover, Plaintiff 11 | has thus far, albeit early in the proceedings, been able to articulate his position on his own. 12 | Finally, again at this early stage in the proceedings, the Court cannot say that Plaintiff has 13 || established that Plaintiff has shown any likelihood of success on the merits. 14 Accordingly, IT IS HEREBY ORDERED that Plaintiffs request for the 15 || appointment of counsel, ECF No. 12, is denied 16 17 | Dated: September 12, 2022 Co 18 DENNIS M. COTA 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28