(PC) MacLeod v. Saeturn ( 2022 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID MACLEOD, No. 2:21-CV-02230-KJM-DMC-P 12 Plaintiff, 13 v. ORDER 14 M. SAETURN, 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 motion for the appointment of counsel, 19 ECF No. 2. 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 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 ‘ extremely unlikely that he would succeed on the merits. 4 Id. at 1017. 8 In the present case, the Court does not at this time find the required exceptional 9 || circumstances. Plaintiff fails to argue that appointment of counsel is warranted because he is 10 || unable to articulate his claims on his own due to the complexity of the legal issues in dispute or 11 | that there is a likelihood of success on the merits. See ECF No. 2, pg. 1. Instead, Plaintiff simply 12 | asks if there is “any way [he] could get some kind of legal council [sic]” because he is 13 || inexperienced with the “law and this process” without any factual support regarding extraordinary 14 | need. Id. Thus, Plaintiff has failed to satisfy the standard set forth in Terrell. 15 Plaintiff's stated lack of knowledge is common to almost all prisoners and, as 16 || such, not extraordinary. A review of the filings to date indicates that Plaintiff can articulate his 17 || claims on his own, which are neither factually nor legally complex, inasmuch as he independently 18 || prepared and filed a civil rights complaint, a motion for injunctive relief, motion to proceed in 19 || forma pauperis, and filed objections to the Court’s findings and recommendations. Further, at 20 || this stage of the proceedings, it cannot be said that Plaintiff has established a particular likelihood 21 || of success on the merits, as Plaintiff's complaint has not yet been screened, as required under 28 22 | US.C. § 1915A(a). 23 Accordingly, IT IS HEREBY ORDERED that Plaintiff's request for the 24 || appointment of counsel, ECF No. 2, is denied. 25 26 || Dated: December 9, 2022 = IS Co 27 DENNIS M. COTA 28 UNITED STATES MAGISTRATE JUDGE