(PC) Mora v. Desimone ( 2023 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ISMAIL MORA, No. 2:23-CV-0155-KJM-DMC-P 12 Plaintiff, 13 v. ORDER 14 CHRISTOPHER DESIMONE, 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. 16. 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. In his motion, Plaintiff declares he is an indigent state prisoner who is unable to 9 || afford counsel. For these reasons, Plaintiff requests the Court appoint counsel. It is clear based 10 | on the totality of the record that Plaintiff is able to sufficiently articulate his positions on his own. 11 || Moreover, the issues presented in this case, which involve the alleged use of excessive force by 12 || prison guards, are not overly complex factually or legally. Finally, at this early stage of the 13 || proceedings, the Court cannot say that Plaintiff has established a likelihood of success on the 14 || merits. For these reasons, Plaintiff has not demonstrated exceptional circumstances warranting 15 || appointment of counsel. 16 Accordingly, IT IS HEREBY ORDERED that Plaintiff's request for the 17 || appointment of counsel, ECF No. 16, is denied. 18 19 || Dated: March 28, 2023 Co 20 DENNIS M. COTA 7] UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28