(PC) Smith v. Ramos

8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA TONY SMITH, No. 2:19-CV-0917-MCE-DMC-P 12 Plaintiff, 13 v. ORDER RAMOS, et al., 15 Defendants.

17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the Court is plaintiff’s motion for the appointment of counsel (ECF No. 17).

20 The United States Supreme Court has ruled that district courts lack authority to require counsel to represent indigent prisoners in § 1983 cases. See Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the court may request the 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 on the merits and the ability of the plaintiff to articulate his claims on his own in light of the complexity of the legal issues involved. See Terrell, 935 F.2d at 1017. Neither factor is dispositive and both must be viewed together before reaching a decision. See id. In Terrell, the wOAOe 2 LUV VY SE EOIN IVINS OUI LO PO eer OY ove | Ninth Circuit concluded the district court did not abuse its discretion with respect to appointment | 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.

6 Id. at 1017.

7 In the present case, the Court does not at this time find the required exceptional | circumstances. Plaintiff argues appointment of counsel is warranted because he is indigent. This | does not describe an exceptional circumstance but a circumstance common to almost every || prisoner pursuing a case in federal court. Further, a review of the record reflects that this case is || not complex, either legally or factually, and plaintiff has thus far been able to articulate his claims | onhis own. Finally, at this state of the litigation with a motion to dismiss the complaint pending, | the Court cannot say that plaintiff has any particular likelihood of success on the merits.

14 It appears that plaintiff's motion for the appointment of counsel was filed in | response to defendants’ motion to dismiss and in lieu of an opposition thereto. On the Court’s | own motion, plaintiff will be granted an extension of time to file a response to defendants’ motion | to dismiss.

18 Accordingly, IT IS HEREBY ORDERED that: 19 1. Plaintiffs request for the appointment of counsel (ECF No. 17) is denied; | and 21 2. Plaintiff may file an opposition to defendants’ motion to dismiss within 30 | days of the date of this order.

25 | Dated: May 28, 2020 Sx<o_- 26 DENNIS M. COTA 27 UNITED STATES MAGISTRATE JUDGE