(PC) Brown v. Dirske ( 2024 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TOM BROWN, No. 2:23-CV-2273-KJM-DMC-P 12 Plaintiff, 13 v. ORDER 14 JEFF DIRSKE, 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 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 incarcerated and has trouble walking and dressing 9 || himself. He also states that he is in constant pain and that he should have had hip surgery. 10 || Plaintiff also states that he is not a high school graduate. These are not exceptional 11 || circumstances, and, despite Plaintiff's physical limitations, the docket reflects that he has been 12 | able to sufficiently articulate his claims on his own and has filed an amended complaint in 13 || response to the Court’s screening order. Further, as described in the screening order issued on 14 || January 31, 2024, the legal and factual issues involved in this case are not complex. Finally, at 15 || this early stage of the proceedings before an answer has been filed or any discovery conducted, 16 || the Court cannot say that Plaintiff has established any particular likelihood of success on the 17 || merits. 18 Accordingly, IT IS HEREBY ORDERED that Plaintiff's request for the 19 || appointment of counsel, ECF No. 10, is denied. 20 21 | Dated: March 11, 2024 Co 22 DENNIS M. COTA 3 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28