(PC) Richards v. Smith ( 2023 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY DAVID RICHARDS, No. 2:23-CV-0070-DMC-P 12 13 Plaintiff, 14 v. ORDER 15 16 BENJAMIN SMITH, 17 Defendant. 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. 13. 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 seeks appointment of counsel on the grounds that he has trouble 12 || concentrating and understanding instructions and procedure. See ECF No. 13. However, the 13 || Court is routinely presented with such circumstances in the context of prisoner litigation and, 14 | therefore, finds these factors unexceptional. Further, the Plaintiffs filings in this case have 15 || demonstrated his ability to effectively articulate his claims. For these reasons the Court does not 16 || find an exceptional circumstance for the appointment of counsel. 17 Accordingly, IT IS HEREBY ORDERED that Plaintiff's request for the 18 || appointment of counsel, ECF No. 13, is denied. 19 || Dated: February 6, 2023 = S Co 20 DENNIS M. COTA 7] UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28