Reyes v. Smith et al
ORDER signed by Magistrate Judge Craig M. Kellison on 9/13/2017 DENYING plaintiff's 44 request for the appointment of counsel. (Yin, K)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
CHRISTOPHER SMITH, et al.,
Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42
U.S.C. § 1983. Plaintiff seeks the appointment of counsel. 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 F.2d 1015, 1017 (9th Cir. 1991); Wood v.
Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 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 the present case, the court does not at this time find the required exceptional
circumstances. This case involves claims of denial of adequate medical treatment. These claims
are fairly straightforward and not particularly complex, either legally or factually. Plaintiff
requests the appointment1 of counsel due to his mental disability consisting of depression and
paranoia. However, there is nothing in plaintiff’s motion to indicate he is unable to comprehend
these proceedings, and based on the filings in the case thus far, it would appear plaintiff has the
ability to articulate his claims. A diagnosis of depression and paranoia would not necessarily
lead to an inability to comprehend these proceedings. The difficulties plaintiff may have due to
his imprisonment and/or inexperience is not unique to plaintiff, as most pro se prison litigants
have the same difficulties. Finally, as to the merits of plaintiff’s case, this action will likely
involve plaintiff’s medical records and testimony of both plaintiff and his treating physician.
Based on the arguments made and evidence submitted with the defendant’s motion for summary
judgment, the undersigned cannot find there is a reasonable likelihood that plaintiff will be
successful on the merits of his case at this time. If this action survives summary judgment,
plaintiff may renew his motion for the appointment of counsel.
Accordingly, IT IS HEREBY ORDERED that plaintiff’s request for the
appointment of counsel (Docs. 44) is denied.
DATED: September 13, 2017
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE
Plaintiff indicates that counsel was previously appointed to assist him in this case.
A review of the docket shows no counsel was appointed during these proceedings. It appears
counsel was appointed during the prior appeal, which involved an issue of first impression for the
Ninth Circuit. However, this court has not previously appointed counsel to assist plaintiff.
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