Jenkins v. Abdur-Rahman et al

Filing 16

ORDER signed by Magistrate Judge Craig M. Kellison on 06/05/17 ordering plaintiff's motion for the appointment of counsel 15 is denied. Plaintiff's motion relating to evidence 14 is denied. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT LEE JENKINS, JR.,

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No. 2:13-CV-2325-CMK-P

Plaintiff,
vs.

ORDER

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ABDUR-RAHMAN, et al.,

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Defendants.

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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 are (1) plaintiff’s motion for the appointment of

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counsel (Doc. 15) and (2) plaintiff’s motion regarding discovery (Doc. 14).

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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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In the present case, the court does not at this time find the required exceptional

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circumstances. According to plaintiff, appointment of counsel is appropriate in this case

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because: (1) he is unable to articulate his claims; (2) his claims are complex and involve complex

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factual issues; (3) the parties dispute the facts; and (4) he is indigent. First, the court does not

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agree with plaintiff that he is unable to articulate his claims. To the contrary, the record

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developed thus far demonstrates that plaintiff is capable of articulating his claims to the court.

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Second, the court does not find that plaintiff’s claims are complex or involve complex factual

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issues. Again to the contrary, plaintiff’s medical care claims are quite commonplace and

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straightforward. Third, plaintiff’s lack of funds and disputes as to the facts are typical and do not

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present exceptional circumstances. Finally, the court cannot say at this stage of the proceedings

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before defendants have even been served whether plaintiff has any particular likelihood of

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success on the merits. For all of these reasons, plaintiff’s motion for the appointment of counsel

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will be denied.

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Plaintiff has filed a motion appearing to relate to evidence entitled “Motion to

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Amend Evidence of Correctional Officer Misconduct of a Culture of Racism and the Frequent

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Use of Excessive Force Especially Against Black Inmates at High Desert State Prison.” Attached

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as Exhibit A to the motion is a news article. Plaintiff asks the court to “amend this new evidence

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to his claims.” Plaintiff’s motion will be denied as premature because the case is not yet at issue.

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Once the case is at issue with the filing of an answer to the complaint and once discovery is

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completed, evidence may then be presented in the context of dispositive motions and/or trial.

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Accordingly, IT IS HEREBY ORDERED that:

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Plaintiff’s motion for the appointment of counsel (Doc. 15) is denied; and

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Plaintiff’s motion relating to evidence (Doc. 14) is denied.

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DATED: June 5, 2017
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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