Calloway v. California Department of Corrections and Rehabilitation et al

Filing 55

ORDER signed by Magistrate Judge Dennis M. Cota on 1/17/2023 DENYING plaintiff's 54 request for the appointment of counsel. (Yin, K)

Case 2:16-cv-02532-WBS-DMC Document 55 Filed 01/17/23 Page 1 of 2
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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMISI JERMAINE CALLOWAY,

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No. 2:16-CV-2532-WBS-DMC-P

Plaintiff,
v.

ORDER

CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION, et al.,

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Defendants.

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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 motion for the appointment of counsel,

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ECF No. 54.

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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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Case 2:16-cv-02532-WBS-DMC Document 55 Filed 01/17/23 Page 2 of 2
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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.
Id. at 1017.
In the present case, the Court does not at this time find the required exceptional

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circumstances. Plaintiff contends that his physical health conditions and the complexities of this

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case require that counsel be appointed to expedite trial so Plaintiff can die surrounded by family

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instead of being incarcerated. See generally ECF No. 54. Plaintiff does not claim that his

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declining health has affected his ability to properly articulate his claim. To the contrary based on

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the pleadings he has shown his ability to adequately articulate his claims. Moreover, Plaintiff has

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not demonstrated any particular likelihood of success on the merits of the claim. As such, Plaintiff

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has not demonstrated exceptional circumstances warranting the appointment of counsel.

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Accordingly, IT IS HEREBY ORDERED that Plaintiff’s request for the
appointment of counsel, ECF No. 54, is denied.

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Dated: January 17, 2023

____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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