Jacome v. Vlahakis ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 ALEXDER JACOME, Case No.: 18cv10-GPC-MDD 11 Plaintiff, ORDER DENYING PLAINTIFF'S 12 v. MOTION TO APPOINT COUNSEL 13 DIMITRIS VLAHAKIS, et al., [ECF No. 82] Defendants. 14 15 16 Plaintiff Alexander Jacome (“Plaintiff”), a state prisoner proceeding 17 pro se and in forma pauperis, brought this civil rights action pursuant to 42 18 U.S.C. § 1983 against Defendants Ryan Smith, Kyle McGarvey, Mathew 19 Seitz, James Parent, Habib Choufani, Joshua Linthicum, and Joseph Pirri 20 (collectively, “Defendants”). Plaintiff now moves the Court to appoint counsel 21 because “he is having major difficulty keeping up with his” responsibilities in 22 this action. (ECF No. 82 at 1). Plaintiff contends that Sheriff’s Deputies are 23 retaliating against him for filing this lawsuit. (See id. at 1-2). Plaintiff states 24 that “[a] lot of his legal research request[s] are purposely and obviously 25 incomplete[,] missing a major amount of pertinent pages to this and other 26 actions[,] and [are] returned in a rude [and] untimely manner.” (Id. at 2). 1 unlawful actions.” (Id.). 2 The United States Supreme Court has ruled that district courts lack 3 authority to require counsel to represent indigent prisoners in § 1983 cases. 4 Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain 5 exceptional circumstances, the district court may request the voluntary 6 assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 7 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 8 1335-36 (9th Cir. 1990). 9 The test for exceptional circumstances requires the court to evaluate 10 the plaintiff’s likelihood of success on the merits and the ability of the 11 plaintiff to articulate his claims pro se in light of the complexity of the legal 12 issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 13 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances 14 common to most prisoners, such as lack of legal education and limited law 15 library access do not establish exceptional circumstances that would warrant 16 a request for voluntary assistance of counsel. 17 The Court does not find the required exceptional circumstances to 18 appoint counsel. Plaintiff has demonstrated an ability to articulate his 19 claims in his Fourth Amended Complaint, which withstood a motion to 20 dismiss, and which raise claims that appear relatively straightforward. (ECF 21 Nos. 52, 66). Additionally, while Defendants’ motion to dismiss Plaintiff’s 22 Fourth Amended Complaint was denied, Plaintiff has not demonstrated a 23 likelihood of success on the merits. (See ECF No. 66); see Garcia v. Smith, 24 No. 10-cv-1187-AJB-RBB, 2012 WL 2499003, at *3 (S.D. Cal. June 27, 2012) 25 (noting that even if a prisoner’s claims survive the defendants’ motion to 26 dismiss, it may be “too early to determine the likelihood of success on the l Accordingly, the Court DENIES Plaintiff's motion to appoint counsel. 2 ||See Harrington v. Scribner, 785 F.3d 1299, 1309 (9th Cir. 2015) (noting that a 3 ||finding of exceptional circumstances requires the Court “to consider whether 4 ||there is a likelihood of success on the merits’ and whether the prisoner is 5 |}unable to articulate his claims in light of the complexity of the legal issues 6 ||involved.”’). 7 ITIS SO ORDERED. Dated: October 7, 2020 Miter. Sou Le Hon. Mitchell D. Dembin 10 United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27