(PC) Merino v. CDC

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA — 10 — 11 FRANCISCO MERINO, No. 2:22-CV-01132-DMC-P 12 Plaintiff, 13 v. ORDER 14 CALIFORNIA DEPARTMENT OF CORRECTIONS, et al., — 15 — Defendants. — 16 — — 17 — 18 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to — 19 — 42 U.S.C. § 1983 . Pending before the Court is Plaintiff’s motion for the appointment of counsel, 20 ECF No. 9. 21 The United States Supreme Court has ruled that district courts lack authority to 22 require counsel to represent indigent prisoners in § 1983 cases. See Mallard v. United States Dist. 23 Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the court may request the 24 voluntary assistance of counsel pursuant to 28 U.S.C. § 1915 (e)(1). See Terrell v. Brewer, 935 25 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 26 A finding of “exceptional circumstances” requires an evaluation of both the likelihood of success 27 on the merits and the ability of the plaintiff to articulate his claims on his own in light of the 28 complexity of the legal issues involved. See Terrell, 935 F.2d at 1017. Neither factor is 1 | dispositive and both must be viewed together before reaching a decision. See id. In Terrell, the 2 || Ninth Circuit concluded the district court did not abuse its discretion with respect to appointment 3 || 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 fails to argue that appointment of counsel is warranted because he is 10 || unable to articulate his claims on his own due to the complexity of the legal issues in dispute or 11 || that there is a likelihood of success on the merits. See ECF No. 9. Instead, Plaintiff requests “if 12 || possible, [to] assign [Plaintiff] a counsel appointment” without any factual support regarding 13 || extraordinary need. Id. 14 A review of the filings to date indicates that Plaintiff can articulate his claims on 15 || his own, inasmuch as he independently prepared and filed a civil rights complaint, motion to 16 || proceed in forma pauperis, and requested the assistance of counsel. Further, at this stage of the 17 || proceedings, it cannot be said that Plaintiff has established a particular likelihood of success on 18 || the merits; discovery has not been conducted and there is no evidence presently before the Court 19 || to allow for an evaluation of the merits or complexity of the matters at issue. As such, 20 || exceptional circumstances warranting the appointment of counsel do not currently exist. 21 Accordingly, IT IS HEREBY ORDERED that Plaintiffs request for the 22 || appointment of counsel, ECF No. 9, is denied. — 23 — 24 || Dated: September 12, 2022 Co 2 DENNIS M. COTA 26 UNITED STATES MAGISTRATE JUDGE — 27 — — 28 —