(PC) Foust v. Ali ( 2022 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CARL FOUST, No. 2:19-CV-2579-JAM-DMC-P 12 Plaintiff, 13 v. ORDER 14 ALI, 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. 137. For the reasons set forth below, this motion will be denied. 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 een nnn ene en nn nn non nn en on nnn nnn nn nn ne I ID 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. 6 Id. at 1017. In the present case, the Court does not at this time find the required exceptional 7 circumstances. Plaintiff seeks appointment on the grounds that he is indigent, his incarceration 8 will hinder his ability to litigate this case, and the claims asserted are complex. However, the 9 Court is routinely presented with such circumstances in the context of prisoner litigation and, 10 therefore, finds these factors unexceptional. Plaintiff also claims that he is unable to litigate this 11 action because he suffered severe head trauma and because he is mentally incompetent. Yet 12 Plaintiff submits no records—medical or otherwise—to substantiate these claims. Further, while 13 Plaintiff's filings in this case have indeed demonstrated that he has some difficulty articulating his 14 claims, his allegations were deemed sufficient to proceed to service of the second amended 15 complaint. See ECF No. 88. The record also reflects that Plaintiff has adequately moved the 16 Court for extensions of time and has been able to articulate his need for the appointment of 17 counsel. Thus, the Court finds this reason does not establish an exceptional circumstance for 18 appointment of counsel. 19 Accordingly, IT IS HEREBY ORDERED that Plaintiffs request for the 20 appointment of counsel, ECF No. 137, is denied. 21 22 Dated: July 25, 2022 23 A DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE 25 26 27 28