(PC) Foust v. Ali ( 2022 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CARL FOUST, No. 2:19-CV-2579-DAD-DMC-P 12 Plaintiff, 13 v. ORDER 14 ALI, et al. 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action under 42 18 U.S.C. § 1983. Pending before the Court is Plaintiff’s renewed motion, ECF No. 155, for the 19 appointment of counsel. 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. While Plaintiff has had some difficulty articulating the facts underlying his 9 || claims, the record reflects that Plaintiff has been able to successfully navigate the screening 10 || process and his second amended complaint has been deemed appropriate for service. See ECF 11 || No. 88. The record also reflects that Plaintiff has been able to articulate requests for extensions of 12 || time, has been able to file documents with the Court, and has been able to articulate himself in the 13 || instant motions for appointment of counsel. Plaintiff states in the current motion that 14 || appointment of counsel is necessary due to a number of medical issues, but Plaintiff does not 15 || describe medical issues which would preclude him from preparing and filing documents on his 16 || own. Indeed, the docket, which is replete with filings submitted by Plaintiff, indicates the 17 || contrary. Finally, Defendant Ali — the only defendant against whom this Court has recommended 18 | Plaintiffs claims proceed — has filed a motion to dismiss which to date is unopposed by Plaintiff. 19 | It thus appears that Plaintiff has little chance of success on the merits. Defendant Ali’s motion to 20 || dismiss is addressed in separate findings and recommendations. 21 Accordingly, IT IS HEREBY ORDERED that Plaintiff's renewed motion, ECF 22 | No. 155, for the appointment of counsel is denied. 23 24 || Dated: November 8, 2022 = IS Co 2 DENNIS M. COTA 26 UNITED STATES MAGISTRATE JUDGE 27 28