(PC) Smith v. Osmon ( 2023 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DANIEL ROY SMITH, No. 2:22-CV-1637-WBS-DMC-P 12 13 Plaintiff, 14 v. ORDER 15 16 OSMON, et al., 17 Defendants. 18 19 20 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 21 42 U.S.C. § 1983. Pending before the Court is Plaintiff’s motion for the appointment of counsel, 22 ECF No. 12. 23 The United States Supreme Court has ruled that district courts lack authority to 24 require counsel to represent indigent prisoners in § 1983 cases. See Mallard v. United States Dist. 25 Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the court may request the 26 voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). See Terrell v. Brewer, 935 27 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 28 A finding of “exceptional circumstances” requires an evaluation of both the likelihood of success 1 | on the merits and the ability of the plaintiff to articulate his claims on his own in light of the 2 || complexity of the legal issues involved. See Terrell, 935 F.2d at 1017. Neither factor is 3 || dispositive and both must be viewed together before reaching a decision. See id. In Terrell, the 4 | Ninth Circuit concluded the district court did not abuse its discretion with respect to appointment 5 || of counsel because: 6 ... Terrell demonstrated sufficient writing ability and legal knowledge to articulate his claim. The facts he alleged and the issues he raised were not 7 of substantial complexity. The compelling evidence against Terrell made it g extremely unlikely that he would succeed on the merits. 9 Id. at 1017. 10 In the present case, the Court does not at this time find the required exceptional 11 || circumstances. Plaintiff alleges that he is legally blind and unable to read because of this 12 || condition. ECF No.12, pg 1. However, Plaintiff appears to have written this Motion to Appoint 13 || Counsel without the use of assistance and Plaintiff has not alleged facts sufficient to show that he 14 | is not able to prepare and represent himself in this case. Id. Based on Plaintiffs past filings it is 15 || clear he is capable of articulating his claims. Finally, at this stage in the case the Court cannot 16 || determine that Plaintiff has established a particular likelihood of success on the merits. 17 Accordingly, IT IS HEREBY ORDERED that Plaintiff's request for the 18 || appointment of counsel, ECF No. 12, is denied. 19 20 | Dated: February 6, 2023 = IS Co 21 DENNIS M. COTA 02 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28