Dearwester v. Brown

Filing 14

ORDER signed by Magistrate Judge Craig M. Kellison on 4/2/2015 DENYING plaintiff's 12 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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FRANK LEE DEARWESTER,

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No. 2:13-cv-1250-CMK-P

Plaintiff,
vs.

ORDER

EDMUND G. BROWN, JR., et al.
Defendants.
/
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.
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In the present case, the court does not at this time find the required exceptional

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circumstances. Plaintiff has demonstrated sufficient writing ability and legal knowledge to

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articulate his claim. Plaintiff is challenging the constitutionality of a California statute, and

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appears sufficiently capable of articulating the issue, which does not appear to be overly

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complex. In his motion, plaintiff states that he has limited legal knowledge, that his incarceration

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will hinder his ability to litigate this case, and he cannot afford counsel. The court finds the

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limitations insufficient to meet the “exceptional circumstances” requirement or establish that

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plaintiff cannot articulate his claims without counsel. In addition, given the facts as alleged in

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the complaint, it does not appear likely at this stage of the proceedings, that plaintiff will

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succeed on the merits.
Accordingly, IT IS HEREBY ORDERED that plaintiff’s request for the
appointment of counsel (Doc. 12) is denied.

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DATED: April 2, 2015
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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