Sekona v. Custino, et al.

Filing 180

ORDER signed by Magistrate Judge Dennis M. Cota on 11/05/21 DENYING 173 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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ETUATE SEKONA,

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No. 2:16-CV-0517-JAM-DMC-P

Plaintiff,
v.

ORDER

F. CUSTINO,
Defendant.

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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

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require counsel to represent indigent prisoners in civil rights 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 id.

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In Terrell, the Ninth Circuit concluded the district court did not abuse its discretion with respect
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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.

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Id. at 1017.

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In the present case, the Court does not at this time find the required exceptional

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circumstances. According to Plaintiff, appointment of counsel is warranted because: (1) he is

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indigent; (2) he has been granted in forma pauperis status; and (3) the case is complex. See ECF

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No. 173, pgs. 1-2. Being indigent and being granted in forma pauperis status are not exceptional

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circumstances. To the contrary, they are common among inmate litigants. Further, as stated in a

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previous order denying counsel, the claims raised—an Eighth Amendment safety claim and a due

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process claim—are not complex legally or factually. See ECF No. 129, pg. 2. Additionally,

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Plaintiff has sufficiently been able to articulate his claims thus far. Finally, Plaintiff has not

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argued the likelihood of success on the merits. Plaintiff has made cognizable claims and passed

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summary judgment thus far, but this is not dispositive as to Plaintiff’s likelihood of success.

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Accordingly, IT IS HEREBY ORDERED that Plaintiff’s request for the
appointment of counsel, ECF No. 173, is denied.

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Dated: November 5, 2021
____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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