Bell v. Hanks

Filing 21

ORDER signed by Magistrate Judge Craig M. Kellison on 5/21/2015 DENYING plaintiff's 20 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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HORACE THOMAS,

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Plaintiff,
vs.

Defendant.

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/

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ORDER

W. HANKS,

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No. 2:14-cv-0108-GEB-CMK-P

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

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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 claims he is being harassed and retaliated against for filing an

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Americans with Disabilities Act appeal, and appears sufficiently capable of articulating the issue,

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which does not appear to be overly complex. In his motion, plaintiff states that he requests

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counsel as an indigent inmate, who is unable to afford counsel, in order to protect his interests.

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The court finds these reasons insufficient to meet the “exceptional circumstances” requirement or

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establish that plaintiff cannot articulate his claims without counsel. In addition, given the facts as

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

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will succeed on the merits.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s request for the
appointment of counsel (Doc. 20) is denied.

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DATED: May 21, 2015
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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