(PS) Stafford v. Doss ( 2022 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSEPH ANTHONY STAFFORD, No. 2:16-CV-1403-DMC 12 Plaintiff, 13 v. ORDER 14 DOSS, et al., 15 Defendants. 16 17 Plaintiff, who is proceeding pro se, brings this civil rights action. Pursuant to the 18 written consent of all parties, this case is before the undersigned as the presiding judge for all 19 purposes, including entry of final judgment. See 28 U.S.C. § 636(c); see also ECF No. 100 20 (order of reassignment to Magistrate Judge). The parties appeared before the undersigned on 21 December 7, 2022, at 10:00 a.m., for a telephonic trial-setting conference. Pending before the 22 Court is Plaintiff oral motion for the appointment of trial counsel. 23 The United States Supreme Court has ruled that district courts lack authority to 24 require counsel to represent indigent litigants in § 1983 civil rights cases. See Mallard v. United 25 States Dist. Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the Court 26 may request the voluntary assistance of pro bono counsel pursuant to 28 U.S.C. § 1915(e)(1). See 27 Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 28 1335-36 (9th Cir. 1990). A finding of “exceptional circumstances” requires an evaluation of 1 | both the likelihood of success on the merits and the ability of the plaintiff to articulate his claims 2 | on his own in light of the complexity of the legal issues involved. See Terrell, 935 F.2d at 1017. 3 || Neither factor is dispositive and both must be viewed together before reaching a decision. See id. 4 | In Terrell, the Ninth Circuit concluded the district court did not abuse its discretion with respect 5 || to appointment of counsel because: 6 ... Terrell demonstrated sufficient writing ability and legal knowledge to articulate his claim. The facts he alleged and the issues he raised were not 7 of substantial complexity. The compelling evidence against Terrell made it g extremely unlikely that he would succeed on the merits. 9 Id. at 1017. 10 In the present case, the Court does not at this time find the required exceptional 11 || circumstances. First, the legal and factual issues in this case relating to Plaintiff's claims of 12 | retaliation by Defendants are not so complex as to exceed Plaintiffs ability to litigate this matter 13 || to date, including surviving a summary judgement motion initiated by Defendant. While 14 | Plaintiffs retaliation claims have survived summary judgment, the Court cannot say that Plaintiff 15 || has demonstrated a likelihood of success on the merits at trial. Finally, a review of the docket 16 || reflects that Plaintiff has the ability to articulate his claims on his own. 17 Accordingly, IT IS HEREBY ORDERED that Plaintiff's oral motion for the 18 || appointment of counsel is denied. However, should the Plaintiff secure either paid or Pro bono 19 || counsel that is prepared to assume Plaintiffs representation, this Order is without prejudice to 20 | Plaintiff initiating a request for substitution. 21 22 | ITISSO ORDERED: 23 24 || Dated: December 9, 2022 = IS Co 2 DENNIS M. COTA 26 UNITED STATES MAGISTRATE JUDGE 27 28