(PC) Fayed v. Allison ( 2022 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES MICHAEL FAYED, No. 2:21-CV-2141-DMC-P 12 Plaintiff, 13 v. ORDER 14 KATHLEEN ALLISON, 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 second motion for the appointment of 19 counsel, ECF No. 22. 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. 6 Id. at 1017. 7 In the present case, the Court does not at this time find the required exceptional 8 || circumstances. As with his previous motion, Plaintiff states that appointment of counsel is 9 | warranted because: (1) he is indigent; (2) he has limited and inadequate prison law library access; 10 | (3) his case has merit; and (4) the case will likely involve extensive and complicated discovery; 11 | and (5) it is unfair to require him to proceed pro se against defendants who will have access to 12 || experienced counsel. These circumstances are common among prisoners filing civil rights cases 13 | and, thus, are not extraordinary. Furthermore, a review of Plaintiff's filings to date reflects an 14 | adequate ability to articulate on his own. Finally, as to the merits, the Court has ordered Plaintiff 15 | to file an amended complaint because it found Plaintiffs original claim deficient. The Court has 16 | not yet addressed the sufficiency of Plaintiff's amended pleading. In any event, no defendant has 17 | answered, and no evidence has been presented. It is thus impossible to say at this time that 18 | Plaintiff has established a likelihood that he will succeed on the merits 19 Accordingly, IT IS HEREBY ORDERED that Plaintiff's second motion for the 20 | appointment of counsel, ECF No. 22, is denied. 21 22 | Dated: March 9, 2022 Sx