Dennis v. Solano County Jail, et al

Filing 9

ORDER signed by Magistrate Judge Craig M. Kellison on 1/7/2013 DENYING plaintiff's 6 request for the appointment of counsel. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROME ROBERT DENNIS,

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No. 2:12-cv-2046-CMK-P

Plaintiff,
vs.

ORDER

SOLANO COUNTY JAIL, et al.,
Defendant.
/
Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42

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U.S.C. § 1983. Plaintiff seeks the appointment of counsel. The United States Supreme Court

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has ruled that district courts lack authority to require counsel to represent indigent prisoners in

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§ 1983 cases. See Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain

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exceptional circumstances, the court may request the voluntary assistance of counsel pursuant to

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28 U.S.C. § 1915(e)(1). See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v.

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Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). A finding of “exceptional

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circumstances” requires an evaluation of both the likelihood of success on the merits and the

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ability of the plaintiff to articulate his claims on his own in light of the complexity of the legal

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issues involved. See Terrell, 935 F.2d at 1017. Neither factor is dispositive and both must be
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viewed together before reaching a decision. See id.
In the present case, the court does not at this time find the required exceptional

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circumstances. Plaintiff indicates his need for counsel stems from his mental health issues,

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including his diagnosis of bi-polar with borderline personality disorder. However, such a

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diagnosis does not necessarily indicate a limitation in cognitive abilities, and plaintiff has

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provided no support for the court to conclude that he does not have the ability to understand these

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proceedings and follow court orders. In addition, it does not appear at this stage of these

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proceedings, that plaintiff is unable to proceed in pro per. However, this request will be denied

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without prejudice, and the court may reconsider the appointment of counsel later in these

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proceedings if requested and it appears plaintiff is unable to understand the proceedings and

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continue representing himself.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s request for the
appointment of counsel (Doc. 6) is denied.

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DATED: January 7, 2013
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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