(PC) Khademi v. Roseville Police Department ( 2022 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAVOOD KHADEMI, No. 2:21-CV-0966-JAM-DMC-P 12 Plaintiff, 13 v. ORDER 14 ROSEVILLE POLICE DEPARTMENT, et al., 15 Defendants. 16 17 18 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 19 42 U.S.C. § 1983. Pending before the Court are Plaintiff’s third and fourth motions, ECF No. 16 20 and 18, for the appointment of counsel. 21 The United States Supreme Court has ruled that district courts lack authority to 22 require counsel to represent indigent prisoners in § 1983 cases. See Mallard v. United States Dist. 23 Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the court may request the 24 voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). See Terrell v. Brewer, 935 25 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 26 A finding of “exceptional circumstances” requires an evaluation of both the likelihood of success 27 on the merits and the ability of the plaintiff to articulate his claims on his own in light of the 28 complexity of the legal issues involved. See Terrell, 935 F.2d at 1017. Neither factor is 1 | dispositive and both must be viewed together before reaching a decision. See id. In Terrell, the 2 | Ninth Circuit concluded the district court did not abuse its discretion with respect to appointment 3 | of counsel because: 4 ... Terrell demonstrated sufficient writing ability and legal knowledge to articulate his claim. The facts he alleged and the issues he raised were not 5 of substantial complexity. The compelling evidence against Terrell made it 6 extremely unlikely that he would succeed on the merits. 7 Id. at 1017. 8 In the present case, the Court does not at this time find the required exceptional 9 | circumstances. Plaintiff argues generally in his motions that appointment of counsel is warranted 10 | because he is an inmate, he is indigent, and he is untrained in the law. Notwithstanding these 11 || contentions, a review of Plaintiff's filings to date indicates that he is able to articulate himself on 12 | his own, as demonstrated by his original complaint which appears to state at least some 13 | cognizable claims. Further, at this early stage of the proceedings before any defendant has 14 | appeared or any discovery has been conducted, the Court cannot say that Plaintiff has any 15 | particular likelihood of success on the merits. Finally, as to the cognizable excessive force claim 16 | against Defendants Vanderwende, Landon, and Anganes, it does not appear that the claim is 17 | either legally or factually complex. 18 Accordingly, IT IS HEREBY ORDERED that Plaintiff's motions for the 19 || appointment of counsel, ECF Nos. 16 and 18, are denied. 20 21 | Dated: March 8, 2022 Sx