Freeman v. Lynch et al

Filing 45

ORDER signed by Magistrate Judge Craig M. Kellison on 6/30/2018 DENYING plaintiff's 24 request for the appointment of counsel. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TRAVON LEON FREEMAN,

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No. 2:16-CV-0705-CMK-P

Plaintiff,
vs.

ORDER

E. LYNCH,
Defendant.
/
Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to

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42 U.S.C. § 1983. Plaintiff seeks the appointment of counsel (Doc. 24). The United States

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Supreme Court has ruled that district courts lack authority to require counsel to represent

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indigent prisoners in § 1983 cases. See Mallard v. United States Dist. Court, 490 U.S. 296, 298

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(1989). In certain exceptional circumstances, the court may request the voluntary assistance of

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counsel pursuant to 28 U.S.C. § 1915(e)(1). See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.

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

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

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

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of the legal issues involved. See Terrell, 935 F.2d at 1017. Neither factor is dispositive and both
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must be viewed together before reaching a decision. See id.
In the present case, the court does not at this time find the required exceptional

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circumstances. Plaintiff alleges that the following warrant appointment of counsel: (1) he is

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unable to afford an attorney; (2) he is limited by incarceration; and (3) he is suicidal. As to

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plaintiff’s inability to afford an attorney and his incarceration, the court finds that these are not

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exceptional circumstances but circumstances which are common to almost every inmate litigant

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in this court. As to plaintiff’s suicidal ideation, plaintiff indicates in his motion for appointment

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of counsel that he was taken to a crisis bed on appropriate occasions and there is no indication in

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the record that plaintiff is not receiving mental health treatment. Moreover, the record shows that

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plaintiff has been able to adequately articulate his claims on his own. The record also shows that

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plaintiff’s constitutional claim against defendant Lynch is not overly complex legally or factually.

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Finally, the court cannot say at this juncture of the proceedings whether plaintiff has any

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particular likelihood of success on the merits of his claim.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s request for the
appointment of counsel (Doc. 24) is denied.

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DATED: June 20, 2018
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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