(PC) Richards v. Smith

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA — 10 — 11 ANTHONY DAVID RICHARDS, No. 2:23-CV-0070-DMC-P 12 Plaintiff, 13 v. ORDER 14 BENJAMIN SMITH, 15 Defendant. — 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 are Plaintiff’s motions for the appointment of 19 counsel, ECF Nos. 30 and 32. Both motions were filed after a stay of proceedings was imposed 20 on February 28, 2024, pending completion of a settlement conference. 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 argues that counsel is warranted as he is incarcerated and indigent. See 10 || ECF No. 30 pg. 2. Plaintiff further argues that that the settlement conferences in this case involve 11 || complex issues of law and/or fact. See ECF No. 32 pg. 1. Indigence and incarceration are 12 || common among inmates pursuing litigation in federal court. Further, the Court does not find that 13 || the issues in this excessive force case at the settlement conference are likely to be factually or 14 | legally complex. At this early stage of the proceedings, before any discovery has been conducted, 15 || the Court cannot say that Plaintiff has established any particular likelihood of success on the 16 | merits. Finally, a review of the docket reflects that Plaintiff has to date been able to present his 17 || claims on his own without the assistance of counsel. 18 Accordingly, IT IS HEREBY ORDERED that Plaintiff's requests for the 19 || appointment of counsel, ECF Nos. 30 and 32 are denied. — 20 — 21 || Dated: May 14, 2024 Co 22 DENNIS M. COTA 3 UNITED STATES MAGISTRATE JUDGE — 24 — — 25 — — 26 — — 27 — — 28 —