Sekona v. Custino, et al.
ORDER signed by Magistrate Judge Dennis M. Cota on 11/05/21 DENYING 173 Motion to Appoint Counsel. (Plummer, M)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
Plaintiff, a prisoner proceeding pro se, brings this civil rights action. Pending
before the Court is Plaintiff’s motion, ECF No. 173, for the appointment of counsel.
The United States Supreme Court has ruled that district courts lack authority to
require counsel to represent indigent prisoners in civil rights cases. See Mallard v. United States
Dist. Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the court may
request the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). See Terrell v.
Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36
(9th Cir. 1990). A finding of “exceptional circumstances” requires an evaluation of both the
likelihood of success on the merits and the ability of the plaintiff to articulate his claims on his
own in light of the complexity of the legal issues involved. See Terrell, 935 F.2d at 1017.
Neither factor is dispositive and both must be viewed together before reaching a decision. See id.
In Terrell, the Ninth Circuit concluded the district court did not abuse its discretion with respect
to appointment of counsel because:
. . . 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.
Id. at 1017.
In the present case, the Court does not at this time find the required exceptional
circumstances. According to Plaintiff, appointment of counsel is warranted because: (1) he is
indigent; (2) he has been granted in forma pauperis status; and (3) the case is complex. See ECF
No. 173, pgs. 1-2. Being indigent and being granted in forma pauperis status are not exceptional
circumstances. To the contrary, they are common among inmate litigants. Further, as stated in a
previous order denying counsel, the claims raised—an Eighth Amendment safety claim and a due
process claim—are not complex legally or factually. See ECF No. 129, pg. 2. Additionally,
Plaintiff has sufficiently been able to articulate his claims thus far. Finally, Plaintiff has not
argued the likelihood of success on the merits. Plaintiff has made cognizable claims and passed
summary judgment thus far, but this is not dispositive as to Plaintiff’s likelihood of success.
Accordingly, IT IS HEREBY ORDERED that Plaintiff’s request for the
appointment of counsel, ECF No. 173, is denied.
Dated: November 5, 2021
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE
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