(PC) Brooks v. Smith ( 2022 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WILLIE LEE BROOKS, II, No. 2:22-CV-0062-DMC-P 12 Plaintiff, 13 v. ORDER 14 RAINELLE SMITH, 15 Defendant. 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 are Plaintiff’s motions for the appointment of 19 counsel, ECF Nos. 34. 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 contends that the appointment of counsel is warranted because (1) the 9 || presence of medical and mental healthcare or other issues will likely require a medical expert 10 || witness to present evidence on the denial of medical care, (2) the law is complex and is governed 11 || by special rules of civil procedure and local court rules, and (3) the task of learning and following 12 || all the laws and rules and investigating the facts and gathering evidence for trial can be “difficult 13 || for anyone without legal training.” Id. 14 Plaintiffs stated circumstances such as the lack of knowledge, legal rules and 15 || procedure, or the potential necessity of an expert witnesses are common to almost all prisoners 16 || and, as such, not extraordinary. A review of the filings to date indicates that Plaintiff can 17 || articulate his claims on his own, which are neither factually nor legally complex, inasmuch as he 18 || independently prepared and filed a civil rights complaint and has made numerous motions to this 19 || Court. Furthermore, at this stage of the proceedings before discovery, it cannot be said that 20 | Plaintiff has established a particular likelihood of success on the merits. As such, exceptional 21 || circumstances warranting the appointment of counsel do not currently exist. 22 Accordingly, IT IS HEREBY ORDERED that Plaintiffs requests for the 23 || appointment of counsel, ECF No. 34, is denied. 24 25 Dated: December 12, 2022 Co 26 DENNIS M. COTA 07 UNITED STATES MAGISTRATE JUDGE 28