Sekona v. Custino, et al.
ORDER signed by Magistrate Judge Dennis M. Cota on 10/29/18 DENYING 76 Motion to Appoint Counsel. (Plummer, M)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
F. CUSTINO, et al.,
Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to
42 U.S.C. § 1983. Pending before the court is plaintiff’s motion 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 § 1983 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. As to success on the merits, while defendants have filed an answer, no discovery
has been conducted and no issues have been briefed. Therefore, the court cannot say at this stage
of the proceedings plaintiff has any particular likelihood of success on the merits. Moreover, the
court finds the claims raised in this case – an Eighth Amendment safety claim and a due process
claim – are not complex legally or factually, and plaintiff has demonstrated an adequate ability to
articulate them on his own.
Accordingly, IT IS HEREBY ORDERED that plaintiff’s request for the
appointment of counsel (Doc. 76) is denied.
Dated: October 29, 2018
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE
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