Sekona v. Custino, et al.

Filing 192

ORDER signed by Magistrate Judge Dennis M. Cota on 12/28/21 DENYING 186 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 pursuant to

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42 U.S.C. § 1983. Pending before the Court is Plaintiff’s renewed motion for the appointment of

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counsel, ECF No. 186.

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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 Dist.

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Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the Court may request the

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voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). See Terrell v. Brewer, 935

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F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

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A finding of “exceptional circumstances” requires an evaluation of both the likelihood of success

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on the merits and the ability of the plaintiff to articulate his claims on his own in light of the

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complexity of the legal issues involved. See Terrell, 935 F.2d at 1017. Neither factor is

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dispositive and both must be viewed together before reaching a decision. See id. In Terrell, the
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Ninth Circuit concluded the district court did not abuse its discretion with respect to appointment

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of counsel because:

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. . . 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
circumstances.
As to success on the merits, while the court has recommended denial of

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defendants’ motion for summary judgment as to Plaintiff’s Eighth Amendment safety claim

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against defendant Custino, Plaintiff has not demonstrated any particular likelihood of success on

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the merits of that claim. At this point in the proceedings, the record merely demonstrates that

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there are genuine disputes of material fact as to Plaintiff’s claim against defendant Custino, not

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that Plaintiff is likely to prevail on that claim. Moreover, the Court finds the Eighth Amendment

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safety claim is not complex legally or factually, and Plaintiff has demonstrated an adequate ability

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to articulate them on his own.

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Accordingly, IT IS HEREBY ORDERED that Plaintiff’s renewed request for the
appointment of counsel, ECF No. 186, is denied.

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Dated: December 28, 2021
____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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