(PC) Peets v. Brown ( 2022 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LOUIS PEETS, No. 2:18-CV-2469-KJM-DMC-P 12 Plaintiff, 13 v. ORDER 14 RICHARD TOWNSEND, 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 is Plaintiff’s motion for the appointment of counsel, 19 ECF No. 75. 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 extremely unlikely that he would succeed on the merits. 5 Id. at 1017. 6 7 In the present case, the Court does not at this time find the required exceptional 8 circumstances. Plaintiff has not demonstrated changed circumstances since the last time the Court 9 addressed his request for counsel. In the order denying Plaintiff’s previous motion for the 10 appointment of counsel, ECF No. 69, the Court noted that Plaintiff failed to make any new and 11 substantive showing of exceptional circumstances which would support such an appointment. 12 This motion also lacks any such showing, and thus is similarly deficient. 13 Here, Plaintiff’s motion refers to the explanation of circumstances previously 14 submitted to the Court, and states that although prison officials served him with letters from the 15 Court and Attorney General, he has on several occasions “been unable to learn of the letter’s [sic] 16 contents.” ECF No. 75. However, at no time has Plaintiff provided substantiation of such claims. 17 This Court has received no documentation regarding Plaintiff’s claimed visual impairment or the 18 degree to which it restricts his ability to represent his own interests. In fact, Plaintiff has 19 demonstrated on multiple occasions that Americans with Disabilities Act accommodations are 20 available to him, he is aware of how to utilize them, and he has in fact used them. See, e.g. ECF 21 No. 63, ECF No. 68. It is unclear why Plaintiff has not utilized these accommodations to have the 22 letters he cites in this motion read to him. Plaintiff has also made no showing that the ADA 23 accommodations available to him do not provide him the opportunity to articulate his claims on 24 his own in light of the complexity of the issues involved. 25 The Court again notes, as it did in its January 31, 2022, order, ECF No. 67, that 26 Plaintiff has also failed to demonstrate any particular likelihood that the action will conclude in 27 his favor. While some of Plaintiff’s claims have survived the pleading stage of litigation, no 28 discovery has been conducted and no evidence is presently before the Court to allow for an 1 | evaluation of the merits of this case. 2 Accordingly, IT IS HEREBY ORDERED that Plaintiffs request for the 3 | appointment of counsel, ECF No. 75, is denied. 4 5 | Dated: June 2, 2022 Ssvcqo_ 6 DENNIS M. COTA 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28