(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 JERRY BROWN, JR., 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 are Plaintiff’s two motion for the appointment of 19 counsel, ECF Nos. 77-78. For the reasons set forth below, these motions 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 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 In the present case, the Court does not at this time find the required exceptional 7 circumstances. Plaintiff has not demonstrated changed circumstances since the last time the Court 8 addressed his request for counsel. In the order denying Plaintiff’s most recent motion for the 9 appointment of counsel, ECF No. 76, the Court again noted that Plaintiff failed to make any new 10 and substantive showing of exceptional circumstances which would support such an appointment. 11 The present motions, which are substantively identical, also lack any such showing and thus are 12 similarly deficient. 13 Plaintiff’s motions refer to the explanation of circumstances previously submitted 14 to the Court, and state that although prison officials served him with letters from the Court and 15 Attorney General, he has been unable to maintain his right to confidentiality because he requires 16 someone else to read them to him. However, Plaintiff has still not provided any substantiation of 17 such claims. This Court has received no documentation regarding Plaintiff’s claimed visual 18 impairment or the degree to which it restricts his ability to represent his own interests. In fact, 19 Plaintiff has demonstrated on multiple occasions that Americans with Disabilities Act 20 accommodations are available to him, he is aware of how to utilize them, and he has in fact used 21 them. See, e.g., ECF Nos. 63, 68, 77-78. It remains unclear why Plaintiff has not utilized these 22 accommodations to have the letters he cites in this motion read to him. Plaintiff has also made no 23 showing that the ADA accommodations available to him do not provide him the opportunity to 24 articulate his claims on his own in light of the complexity of the issues involved. The Court yet 25 again notes, as it did in its June 2, 2022 order, ECF No. 76, that Plaintiff has also failed to 26 demonstrate any particular likelihood that the action will conclude in his favor. While some of 27 Plaintiff’s claims have survived the pleading stage of litigation, no discovery has been conducted 28 1 | and no evidence is presently before the Court to allow for an evaluation of the merits of this case. 2 Accordingly, IT IS HEREBY ORDERED that Plaintiff's requests for the 3 | appointment of counsel, ECF Nos. 77-78, are denied. 4 5 | Dated: July 25, 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