(PC) Thomas v. Hernandez

8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA DENNIS THOMAS, No. 2:21-CV-1638-DJC-DMC-P 12 Plaintiff, 13 v. ORDER HERNANDEZ, 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 and for postponement of his case, ECF No. 37.

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 | 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. ‘ Id. at 1017.

7 In the present case, the Court does not at this time find the required exceptional || circumstances to request counsel. Plaintiff's motion requests an attorney to “get things” Plaintiff || needs to fight his case. ECF No. 17. Plaintiff does not explain what things he needs or how an || attorney is necessary to obtain those things. See id. 11 Plaintiff alleges cruel and unusual punishment; his case does not immediately raise || any extraordinary complexities. See ECF No.1. Plaintiff also demonstrated sufficient ability to || articulate his claims through writing a coherent complaint. See id. At the current stage of the || proceedings before any discovery or dispositive motions, Plaintiff has not shown any particular || likelihood of success on the merits. Consequently, Plaintiff has failed to demonstrate the || existence of exceptional circumstances.

17 Plaintiff also seeks postponement of these proceedings. Plaintiff does not, || however, explain why the matter should be stayed or for how long. In any event, a 120-day stay | of these proceedings was imposed on October 6, 2023, pending a settlement conference which || has been set for March 19, 2024, before the Hon. Jeremy D. Peterson.

21 Accordingly, IT IS HEREBY ORDERED that Plaintiffs motion for the || appointment of counsel and postponement of proceedings, ECF No. 37, is DENIED.

24 | Dated: December 12, 2023 Co 2 DENNIS M. COTA 26 UNITED STATES MAGISTRATE JUDGE