(PC) Johnson v. California Department of Corrections ( 2022 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DARRELL EUGENE JOHNSON, No. 2:21-CV-2348-DMC-P 12 Plaintiff, 13 v. ORDER 14 STATE OF CALIFORNIA DEPARTMENT OF CORRECTIONS 15 AND REHABILITATION, et al., 16 Defendants. 17 18 Plaintiff, who is proceeding pro se, brings this civil rights action pursuant to 42 19 U.S.C. § 1983. Pending before the Court is Plaintiff’s motion for the appointment of counsel, 20 ECF No. 10. 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 states that he cannot litigate his case because he is in jail. See ECF No. 10 | 10. Plaintiff was released from custody after he filed his motion and later reincarcerated. 11 | Plaintiffs continued incarceration is not an exceptional circumstance. 12 Accordingly, IT IS HEREBY ORDERED that Plaintiffs request for the 13 | appointment of counsel, ECF No. 10, is denied. 14 15 || Dated: March 8, 2022 Ssvcqo_ 16 DENNIS M. COTA 17 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28