(PC) Kopp v. A. ( 2022 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JASON CHARLES KOPP, No. 2:22-CV-0282-TLN-DMC-P 12 Plaintiff, 13 v. ORDER 14 THOMAS A., 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. 31. 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 fails to argue that appointment of counsel is warranted because he is 9 || unable to articulate his claims on his own due to the complexity of the legal issues in dispute or 10 | that there is a likelihood of success on the merits. See ECF No. 31, pgs. 1-7. Plaintiff pleads the 11 || Court “to allow [him] [his] right to fair and proper counsel” and to “[p]lease grant [him] an 12 || attorney as [he] cannot afford one.” Id., pg. 2. However, Plaintiff fails to provide any factual 13 || support regarding extraordinary need. Id. Thus, Plaintiff has failed to satisfy the standard set 14 | forth in Terrell. 15 Plaintiffs stated circumstances such as the inability to afford counsel are common 16 || to almost all prisoners and, as such, not extraordinary. A review of the filings to date indicates 17 | that Plaintiff can articulate his claims on his own, which are neither factually nor legally complex, 18 || inasmuch as he independently prepared and filed a civil rights complaint, motion to proceed in 19 || forma pauperis, submitted several letters and notices to the Court, and requested the assistance of 20 || counsel. Further, at this stage of the proceedings before discovery, it cannot be said that Plaintiff 21 || has established a particular likelihood of success on the merits. Exceptional circumstances 22 || warranting the appointment of counsel do not currently exist. 23 Accordingly, IT IS HEREBY ORDERED that Plaintiff's request for the 24 || appointment of counsel, ECF No. 31, is denied. 25 26| Date: 12/09/2022 Saco 27 DENNIS M. COTA 28 UNITED STATES MAGISTRATE JUDGE