Scally v. Ferrara et al

Filing 37

ORDER signed by Magistrate Judge Craig M. Kellison on 08/21/18 DENYING 36 Motion to Appoint Counsel. (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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STEPHEN EARL SCALLY,

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No. 2:15-CV-2528-MCE-CMK-P

Plaintiff,
vs.

ORDER

THOMAS A. FERRARA, 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 is plaintiff’s motions for the appointment of counsel

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(Docs. 36).

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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. Specifically, because plaintiff has not yet complied with this court’s order to file

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a second amended complaint, it is impossible to evaluate the likelihood of success on the merits

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of plaintiff’s claims. Because the court cannot make this necessary determination, the court is

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also unable to find that exceptional circumstances exist warranting the appointment of counsel at

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this time. Plaintiff’s motions for the appointment of counsel will, therefore, be denied.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s request for the

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appointment of counsel (Doc. 36) is denied.

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DATED: August 21, 2018
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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