(PC) Powell v. Lynch ( 2024 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ADAM RANDOLPH POWELL, No. 2:22-CV-1493-DAD-DMC-P 12 Plaintiff, 13 v. ORDER 14 JEFF LYNCH, 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 and an extension of time to file an opposition to Defendant Lynch’s motion to dismiss. See ECF 20 No. 22. 21 Turning first to Plaintiff’s request for the appointment of counsel, the United 22 States Supreme Court has ruled that district courts lack authority to require counsel to represent 23 indigent prisoners in § 1983 cases. See Mallard v. United States Dist. Court, 490 U.S. 296, 298 24 (1989). In certain exceptional circumstances, the Court may request the voluntary assistance of 25 counsel pursuant to 28 U.S.C. § 1915(e)(1). See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 26 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). A finding of 27 “exceptional circumstances” requires an evaluation of both the likelihood of success on the merits 28 and the ability of the plaintiff to articulate his claims on his own in light of the complexity of the 1 | legal issues involved. See Terrell, 935 F.2d at 1017. Neither factor is dispositive and both must 2 || be viewed together before reaching a decision. See id. In Terrell, the Ninth Circuit concluded the 3 || district court did not abuse its discretion with respect to appointment of counsel because: 4 ... Terrell demonstrated sufficient writing ability and legal knowledge to articulate his claim. The facts he alleged and the issues he raised were not 5 of substantial complexity. The compelling evidence against Terrell made it ‘ extremely unlikely that he would succeed on the merits. 4 Id. at 1017. 8 In the present case, the Court does not at this time find the required exceptional 9 || circumstances. Plaintiff states that appointment of counsel is appropriate in this case because he 10 || is incarcerated, untrained in the law, and being “bounced around” from prison to prison which 11 | limits his law library access. These are not exceptional circumstances but are common among 12 | mmate litigation civil rights suits in this Court. A review of the docket reflects that Plaintiff is 13 || able to sufficiently articulate himself. Further, the legal and factual issues in this case are not 14 || overly complex. Finally, at this early stage in the proceedings before an answer has been filed or 15 || any discovery conducted, the Court cannot say that Plaintiff has established any particular 16 || likelihood of success on the merits. Plaintiff's request for counsel will be denied. 17 Turning to Plaintiffs request for additional time, good cause appearing therefor 18 | based on Plaintiffs declaration indicating the need for additional time due to various prison 19 || transfers which limit his access to the law library, Plaintiff's motion will be granted. 20 Accordingly, IT IS HEREBY ORDERED as follows: 21 1. Plaintiff's request for the appointment of counsel, ECF No. 22, is denied. 22 2. Plaintiff's request for an extension of time to file an opposition to 23 || Defendant Lynch’s motion to dismiss, ECF No. 22, is GRANTED. 24 3. Plaintiff may file an opposition within 30 days of the date of this order. 25 26 || Dated: February 28, 2024 Co 27 DENNIS M. COTA 28 UNITED STATES MAGISTRATE JUDGE