Smith v. Aubuchon, et al.

Filing 42

ORDER signed by Magistrate Judge Craig M. Kellison on 8/15/2016 DENYING plaintiff's 35 , 41 motions for 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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WILLIAM GRANVILLE SMITH,

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Plaintiff,
vs.

ORDER

B. AUBUCHON, et al.,
Defendants.

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No. 2:14-CV-0775-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 are plaintiff’s identical motions for the appointment

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of counsel (Docs. 35 and 41).

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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. First, plaintiff does not allege the existence of exceptional circumstances. In his

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motions, plaintiff states that counsel should be appointed because he is indigent, he is

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incarcerated, and he is untrained in the law. Far from constituting exceptional circumstances,

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plaintiff’s circumstance is common to nearly every prisoner. Second, as in Terrell, plaintiff has

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demonstrated sufficient writing ability and legal knowledge to articulate his claims and the facts

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he alleges and the issues he raises are not of substantial complexity. See id. Finally, at this

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stage of the proceedings before an answer has been filed or any discovery has been conducted,

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the court is unable to say that plaintiff has demonstrated a likelihood of success on the merits of

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his claims.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motions for the
appointment of counsel (Docs. 35 and 41) are denied.

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DATED: August 15, 2016
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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