(PC) Brooks v. Smith ( 2023 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WILLIE LEE BROOKS, II, No. 2:22-CV-0062-DMC-P 12 Plaintiff, 13 v. ORDER 14 R. SMITH, 15 Defendant. 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. 65. 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 that the appointment of counsel is warranted due to “Plaintiffs 9 || inability as an inmate to perform adequate discovery.” ECF No. 65, pg. 1. Plaintiff further 10 || contends the appointment of counsel is warranted because under Title 15 of the California Code 11 | of Regulations section 3450, Plaintiff's status as an inmate restricts his ability to obtain 12 || documents that are necessary to his claim, which Defendant states in her response to Plaintiff’s 13 || request for interrogatories and documents. ECF No. 65, pgs. 1-2. Plaintiff states that if provided 14 | counsel, “Plaintiff's counsel can get many of these documents.” ECF No. 65, pg. 2. 15 The circumstances Plaintiff describes are not exceptional but are common among 16 || inmates who bring a lawsuit in federal court. The docket reflects that, to date, Plaintiff has been 17 || able to articulate their claims and arguments. Moreover, the issues presented in this case are not 18 || so complex legally or factually as to require counsel. Finally, at this stage of proceedings, the 19 | Court cannot say that Plaintiff has shown a likelihood of success on the merits. For these reasons, 20 | Plaintiff has not demonstrated exceptional circumstances warranting appointment of counsel. 21 Accordingly, IT IS HEREBY ORDERED that Plaintiff's request for the 22 || appointment of counsel, ECF No. 65, is denied. 23 24 | Dated: July 6, 2023 Co 2 DENNIS M. COTA 26 UNITED STATES MAGISTRATE JUDGE 27 28