Elder v. Silva et al

Filing 67

ORDER signed by Magistrate Judge Dennis M. Cota on 8/16/2022 DENYING plaintiff's 66 motion for the appointment of counsel. (Yin, K)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

COREY JEROME ELDER,

12

Plaintiff,

13

v.

14

JOKSCH,

15

No. 2:16-CV-1925-TLN-DMC-P

ORDER

Defendant.

16
17

Plaintiff, a prisoner proceeding pro se, brings this civil rights action under 42

18

U.S.C. § 1983. Before the Court is Plaintiff’s renewed motion for counsel. See ECF No. 66.

19

Plaintiff last sought counsel on January 3, 2022. See ECF No. 62. That motion was denied on

20

March 8, 2022. See ECF No. 65.

21

The United States Supreme Court has ruled that district courts lack authority to

22

require counsel to represent indigent prisoners in § 1983 cases. See Mallard v. United States Dist.

23

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

24

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

25

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

26

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

27

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

28

complexity of the legal issues involved. See Terrell, 935 F.2d at 1017. Neither factor is
1

1

dispositive, and both must be viewed together before reaching a decision. See id. In Terrell, the

2

United States Court of Appeals for the Ninth Circuit concluded the district court did not abuse its

3

discretion with respect to appointment of counsel because:

4
5
6
7

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.

8

In his current motion, Plaintiff argues that appointment of counsel is warranted

9

because he recently contracted the Coronavirus. Plaintiff states that, as a result, he is suffering

10

from symptoms including headaches, fatigue, and memory loss, all of which Plaintiff asserts

11

make it difficult for him to function and concentrate. The Court finds that this does not establish

12

exceptional circumstances. As Plaintiff acknowledges, this case is currently awaiting trial-setting

13

before the District Judge. There are no pending deadlines. Thus, Plaintiff’s symptoms do not

14

result in any circumstance which is exceptional and which cannot, should the Court set a

15

deadline, be accommodated by appropriate requests for extension of time should Plaintiff be

16

unable to meet such deadline in the future due to continuing symptoms. Moreover, the record

17

reflects that Plaintiff has been able to articulate himself on his own, even surviving a motion for

18

summary judgment. Additionally, the issues involved in this case are neither factually nor legally

19

complex. Finally, while Plaintiff has survived summary judgment, indicating genuine issues of

20

material facts for trial, Plaintiff has not established that he is likely to prevail on his claims.

21
22
23
24

Accordingly, IT IS HEREBY ORDERED that Plaintiff’s motion for the
appointment of counsel, ECF No. 66, is denied.
IT IS SO ORDERED.
Dated: August 16, 2022

____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

25
26
27
28
2