(PC) McCoy v. Sacramento Police Department

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA — 10 — 11 JEROME ELI McCOY, No. 2:23-CV-1636-DMC-P 12 Plaintiff, 13 v. ORDER 14 SACRAMENTO POLICE DEPARTMENT, 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 are Plaintiff’s motions for the appointment of 20 counsel, ECF Nos. 4 and 5. 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 asserts that appointment of counsel is warranted because he is disabled. 10 || Attached to Plaintiff's motions is a document, apparently issued by the prison, indicating that 11 | Plaintiff requires assistance with various tasks including reading, writing, reminders, etc. See e.g. 12 | ECF No. 4, pg. 2. In his second motion, Plaintiff states that he is currently receiving assistance 13 || from another inmate. See ECF No. 5, pg. 1. Plaintiff does not state what his disability is, though 14 || it appears to relate to mental impairments. 15 Here, Plaintiff has not demonstrated exceptional circumstances. Specifically, 16 || Plaintiff does not state what his disability is or the precise nature of his limitations. Further, 17 || according to Plaintiff's motions, Plaintiff is being provided assistance by the prison, another 18 || inmate, or both. A review of Plaintiffs filings to date in this case indicate that he is able to 19 || articulate himself adequately with the assistance being provided. Finally, at this stage of the 20 || proceedings before the Court has screened Plaintiffs complaint, the Court cannot say that 21 || Plaintiff has established any particular likelihood of success on the meris or that the claims and 22 || facts involved are overly complex. 23 Accordingly, IT IS HEREBY ORDERED that Plaintiff's requests for the 24 || appointment of counsel, ECF Nos. 4 and 5, are denied. — 25 — 26 || Dated: September 1, 2023 = IS Co 27 DENNIS M. COTA 28 UNITED STATES MAGISTRATE JUDGE