Sekona v. Custino, et al.

Filing 107

ORDER signed by Magistrate Judge Dennis M. Cota on 02/27/19 DENYING 105 Motion to Appoint Counsel. (Plummer, M)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ETUATE SEKONA, 12 13 14 No. 2:16-CV-0517-JAM-DMC-P Plaintiff, v. ORDER F. CUSTINO, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Pending before the court is plaintiff’s renewed motion for the appointment of 19 counsel (Doc. 105). 20 The United States Supreme Court has ruled that district courts lack authority to 21 require counsel to represent indigent prisoners in § 1983 cases. See Mallard v. United States Dist. 22 Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the court may request the 23 voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). See Terrell v. Brewer, 935 24 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 25 A finding of “exceptional circumstances” requires an evaluation of both the likelihood of success 26 on the merits and the ability of the plaintiff to articulate his claims on his own in light of the 27 complexity of the legal issues involved. See Terrell, 935 F.2d at 1017. Neither factor is 28 dispositive and both must be viewed together before reaching a decision. See id. In Terrell, the 1 1 Ninth Circuit concluded the district court did not abuse its discretion with respect to appointment 2 of counsel because: 3 . . . Terrell demonstrated sufficient writing ability and legal knowledge to articulate his claim. The facts he alleged and the issues he raised were not of substantial complexity. The compelling evidence against Terrell made it extremely unlikely that he would succeed on the merits. 4 5 Id. at 1017. 6 7 In the present case, the court does not at this time find the required exceptional 8 circumstances. As to success on the merits, while defendants have filed an answer, no discovery 9 has been conducted and no issues have been briefed.1 Therefore, the court cannot say at this stage 10 of the proceedings plaintiff has any particular likelihood of success on the merits. Moreover, the 11 court finds the claims raised in this case – an Eighth Amendment safety claim and a due process 12 claim – are not complex legally or factually, contrary to plaintiff’s assertion in the instant motion 13 for counsel, and plaintiff has demonstrated an adequate ability to articulate them on his own. Accordingly, IT IS HEREBY ORDERED that plaintiff’s request for the 14 15 appointment of counsel (Doc. 105) is denied. 16 17 18 Dated: February 27, 2019 ____________________________________ DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 Defendants’ motion for summary judgment, which the court has recommended be denied, is based on exhaustion and not the merits of plaintiff’s claims. 2 1 28

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