1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * *

4 TERON FRANKLIN, Case No. 3:18-CV-00522-CLB

5 Plaintiff, ORDER WITHDRAWING PRIOR ORDER DENYING MOTION FOR APPOINTMENT 6 v. OF COUNSEL AND GRANTING MOTION FOR APPOINTMENT OF COUNSEL 7 STATE OF NEVADA, et al., [ECF Nos. 37, 42] 8 Defendants.

9 On August 2, 2021, Plaintiff Teron Franklin (“Franklin”) filed a motion for 10 appointment of counsel. (ECF No. 37.) The Court ultimately denied the motion, finding 11 that exceptional circumstances did not exist to warrant appointment of counsel at that 12 time. (ECF No. 42.) The Court now withdraws the prior order and reconsiders Franklin’s 13 motion. 14 There is no constitutional right to appointed counsel in a § 1983 action. E.g., Rand 15 v. Rowland,

(9th Cir. 1997), opinion reinstated in pertinent part, 154

, 954 n.1 (9th Cir. 1998) (en banc). The provision in

(e)(1) gives 17 the court discretion to “request an attorney to represent any person unable to afford 18 counsel.”

(e)(1); see, e.g., Wilborn v. Escalderon,

, 1331 19 (9th Cir. 1998) (en banc.) While the decision to request counsel lies within the discretion 20 of the district court, the court may exercise this discretion to request counsel only under 21 “exceptional circumstances.” Terrell v. Brewer,

(9th Cir. 1991). 22 A finding of “exceptional circumstances” requires the court to evaluate (1) the 23 plaintiff’s likelihood of success on the merits and (2) the Plaintiff’s ability to articulate his 24 claims pro se considering the complexity of the legal issues involved.

(quoting Wilborn, 25

) (internal quotation marks omitted). Neither factor is dispositive, and 26 both factors must be considered before a court decides.

The difficulties every litigant 27 faces when proceeding pro se does not qualify as an exceptional circumstance. Wood v. 1 would benefit from the assistance of competent counsel, such a benefit does not rise to 2 the level of “exceptional circumstances.” Rand,

. Rather, the plaintiff 3 must demonstrate that he is unable to articulate his claims due to their complexity.

4 Given the posture of this case at this juncture, the Court finds that exceptional 5 circumstances warrant appointment of counsel. Terrell,

. Specifically, 6 given Franklin defeated Defendants’ motion for summary judgment as to the excessive 7 force claim, Franklin has a likelihood of success on the merits. Additionally, as this case 8 will now proceed to trial the Court finds that Franklin’s documented mental health 9 conditions, he has a diminished ability to articulate his claims at trail pro se considering 10 the complexity of the legal issues involved—such as the potential need for expert 11 witnesses. Accordingly, Franklin has shown that exceptional circumstances exist here. 12 The Court therefore withdraws the prior order denying the motion for appointment 13 of counsel, (ECF No. 42), and reconsiders and grants Franklin’s motion for appointment 14 of counsel, (ECF No. 37). This case is referred to the Pro Bono Program adopted in the 15 Amended General Order 2019-07 for the purpose of identifying counsel willing to be 16 appointed as pro bono counsel for Franklin. By referring this case to the Program, the 17 Court is not expressing an opinion on the merits of the case. 18 Accordingly, IT IS HEREBY ORDERED that the Court’s prior order denying the 19 motion for appointment of counsel, (ECF No. 42), is WITHDRAWN. 20 IT IS FURTHER ORDERED that upon reconsideration, Franklin’s motion for 21 appointment of counsel, (ECF No. 37), is GRANTED. 22 IT IS FURTHER ORDERED that this case is referred to the Pro Bono Program for 23 appointment of counsel for the purposes identified herein. 24 IT IS FURTHER ORDERED that the Clerk shall also forward this order to the Pro 25 Bono Liaison. 26 DATED: _J_a_n_u_a_ry_ _9_, _2_0_2_3________ 27 ____________________________________ UNITED STATES MAGISTRATE JUDGE