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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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 15 No. 2:16-CV-0517-JAM-DMC-P Plaintiff, v. ORDER F. CUSTINO, Defendant. 16 17 18 19 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 20 require counsel to represent indigent prisoners in civil rights cases. See Mallard v. United States 21 Dist. Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the court may 22 request the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). See Terrell v. 23 Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 24 (9th Cir. 1990). A finding of “exceptional circumstances” requires an evaluation of both the 25 likelihood of success on the merits and the ability of the plaintiff to articulate his claims on his 26 own in light of the complexity of the legal issues involved. See Terrell, 935 F.2d at 1017. 27 Neither factor is dispositive and both must be viewed together before reaching a decision. See id. 28 In Terrell, the Ninth Circuit concluded the district court did not abuse its discretion with respect 1 1 2 3 4 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. 5 Id. at 1017. 6 In the present case, the Court does not at this time find the required exceptional 7 circumstances. According to Plaintiff, appointment of counsel is warranted because: (1) he is 8 indigent; (2) he has been granted in forma pauperis status; and (3) the case is complex. See ECF 9 No. 173, pgs. 1-2. Being indigent and being granted in forma pauperis status are not exceptional 10 circumstances. To the contrary, they are common among inmate litigants. Further, as stated in a 11 previous order denying counsel, the claims raised—an Eighth Amendment safety claim and a due 12 process claim—are not complex legally or factually. See ECF No. 129, pg. 2. Additionally, 13 Plaintiff has sufficiently been able to articulate his claims thus far. Finally, Plaintiff has not 14 argued the likelihood of success on the merits. Plaintiff has made cognizable claims and passed 15 summary judgment thus far, but this is not dispositive as to Plaintiff’s likelihood of success. 16 17 Accordingly, IT IS HEREBY ORDERED that Plaintiff’s request for the appointment of counsel, ECF No. 173, is denied. 18 19 Dated: November 5, 2021 ____________________________________ DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 2

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