(PC) Johnson v. Masuda ( 2024 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KEITH D. JOHNSON, No. 2:23-CV-2883-KJM-DMC-P 12 Plaintiff, 13 v. ORDER 14 KELLY MASUDA, 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 the appointment of counsel. 19 See ECF No. 10. 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 5 extremely unlikely that he would succeed on the merits. ‘ Id. at 1017. 7 In the present case, the Court does not at this time find the required exceptional 8 | circumstances. Plaintiff states that he is untrained in the law and requires the assistance of 9 || counsel. See ECF No. 10. This is a typical circumstance for prisoner litigants and, thus, not an 10 || exceptional circumstance warranting the appointment of counsel. Further, a review of the docket 11 | reflects that Plaintiff is capable of presenting his claims, which are neither factually nor legally 12 || complex, on his own. Finally, at this early stage of the proceedings before Plaintiff has filed a 13 || first amended complaint as ordered, the Court cannot stay that Plaintiff has demonstrated any 14 | particular likelihood of success on the merits. 15 By separate order, the Court will grant Plaintiff additional time to file an amended 16 || complaint in compliance with the Court’s January 19, 2024, order. 17 Accordingly, IT IS HEREBY ORDERED that Plaintiff's request for the 18 || appointment of counsel, ECF No. 10, is DENIED. 19 20 | Dated: February 7, 2024 Co 21 DENNIS M. COTA 02 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28