Smith v. Aubuchon, et al.

Filing 52

ORDER signed by Magistrate Judge Craig M. Kellison on 1/10/17 ORDERING that plaintiff's motion for an extension of time (Doc. 49 ) is GRANTED; Plaintiff may file objections to the court's September 9, 2016, findings andrecommendations within 30 days of the date of this order; and plaintiff's motion for the appointment of counsel (Doc. 50 ) is DENIED.(Dillon, 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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WILLIAM GRANVILLE SMITH,

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No. 2:14-CV-0775-KJM-CMK-P

Plaintiff,
vs.

ORDER

B. AUBUCHON, et al.,
Defendants.
/
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 motion for an extension of time (Doc.

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49) and plaintiff’s motion for appointment of counsel (Doc. 50).

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Plaintiff seeks an extension of time to file objections to the court’s September 9,

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2016, findings and recommendations. Good cause appearing therefor, the request is granted.

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Plaintiff’s objections will be due within 30 days of the date of this order.

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

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motion, 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:

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1.

Plaintiff’s motion for an extension of time (Doc. 49) is granted;

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2.

Plaintiff may file objections to the court’s September 9, 2016, findings and

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recommendations within 30 days of the date of this order; and
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Plaintiff’s motion for the appointment of counsel (Doc. 50) is denied.

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DATED: January 10, 2017
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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