Reyes v. Smith et al

Filing 49

ORDER signed by Magistrate Judge Craig M. Kellison on 8/14/2018 DENYING 48 Motion to Appoint Counsel. (Henshaw, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID REYES,

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Plaintiff,
vs.

ORDER

CHRISTOPHER SMITH, et al.,
Defendants.

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No. 2:12-CV-0652-KJM-CMK-P

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to

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42 U.S.C. § 1983. Pending before the court is plaintiff’s renewed motion (Doc. 48) for the

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appointment of counsel.

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The United States Supreme Court has ruled that district courts lack authority to

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require counsel to represent indigent prisoners in § 1983 cases. See Mallard v. United States

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Dist. Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the court may

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request the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). See Terrell v.

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Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36

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(9th Cir. 1990). A finding of “exceptional circumstances” requires an evaluation of both the

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likelihood of success on the merits and the ability of the plaintiff to articulate his claims on his
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own in light of the complexity of the legal issues involved. See Terrell, 935 F.2d at 1017.

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Neither factor is dispositive and both must be viewed together before reaching a decision. See

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id.

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Plaintiff has not presented any new circumstances since he last sought the

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appointment of counsel in February 2017. Accordingly, for the reasons outlined in the court’s

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September 13, 2017, order denying plaintiff’s previous request, the current request for counsel is

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also denied.

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IT IS SO ORDERED.

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DATED: August 14, 2018
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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