(PC) Elder v. Joksch ( 2022 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 COREY JEROME ELDER, No. 2:16-CV-1925-TLN-DMC-P 12 Plaintiff, 13 v. ORDER 14 JOKSCH, 15 Defendant. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action under 42 18 U.S.C. § 1983. Before the Court is Plaintiff’s renewed motion for counsel. ECF No. 62. 19 The United States Supreme Court has ruled that district courts lack authority to 20 require counsel to represent indigent prisoners in § 1983 cases. See Mallard v. United States Dist. 21 Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the court may request the 22 voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). See Terrell v. Brewer, 935 23 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 24 A finding of “exceptional circumstances” requires an evaluation of both the likelihood of success 25 on the merits and the ability of the plaintiff to articulate his claims on his own in light of the 26 complexity of the legal issues involved. See Terrell, 935 F.2d at 1017. Neither factor is 27 dispositive, and both must be viewed together before reaching a decision. See id. In Terrell, the 28 United States Court of Appeals for the Ninth Circuit concluded the district court did not abuse its 1 | discretion with respect to appointment of counsel because: 2 Terrell demonstrated sufficient writing ability and legal knowledge to articulate his claim. The facts he alleged and the issues he raised were not 3 of substantial complexity. The compelling evidence against Terrell made it 4 extremely unlikely that he would succeed on the merits. 5 Id. at 1017. 6 Beyond contentions in support of his underlying allegations, Plaintiff does not 7 | present any exceptional circumstances warranting the appointment of counsel. Plaintiff's 8 || unsupported motion is denied. 9 IT IS SO ORDERED. 10 11 | Dated: March 8, 2022 Ssvcqo_ 12 DENNIS M. COTA 13 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28