Puckett v. Agboli et al

Filing 48

ORDER signed by Magistrate Judge Craig M. Kellison on 5/22/2018 DENYING plaintiff's 37 motion 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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DURRELL ANTHONY PUCKETT,

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No. 2:14-cv-2776-CMK-P

Plaintiff,

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vs.

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A. AGBOLI, et al.

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ORDER

Defendants.

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42

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U.S.C. § 1983. Pending before the court is plaintiff’s motion for appointment of counsel (Doc.

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37).

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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. Plaintiff’s motion based on his bi-polar disorder, which he indicates is currently

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stable, his mental health treatment, and denial of access to the law library and legal property.

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However, there is nothing in plaintiff’s motion or other filings to indicate he is unable to

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comprehend these proceedings, and based on the filings in the case thus far, it would appear

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plaintiff has the ability to articulate his claims. To the extent plaintiff’s claims limited access to

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legal materials, that is not an exceptional circumstance, but one all prisoners face. Finally, as to

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the merits of plaintiff’s case, at this early stage of these proceedings, the undersigned cannot find

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there is a reasonable likelihood that plaintiff will be successful on the merits of his case at this

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time.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for appointment
of counsel (Doc. 37) is denied.

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DATED: May 22, 2018
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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