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)

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Case 2:16-cv-02532-WBS-DMC Document 55 Filed 01/17/23 Page 1 of 2 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMISI JERMAINE CALLOWAY, 12 13 14 15 No. 2:16-CV-2532-WBS-DMC-P Plaintiff, v. ORDER CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, et al., 16 Defendants. 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 19 42 U.S.C. § 1983. Pending before the Court is Plaintiff’s motion for the appointment of counsel, 20 ECF No. 54. 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 Case 2:16-cv-02532-WBS-DMC Document 55 Filed 01/17/23 Page 2 of 2 1 dispositive and both must be viewed together before reaching a decision. See id. In Terrell, the 2 Ninth Circuit concluded the district court did not abuse its discretion with respect to appointment 3 of counsel because: 4 5 6 7 8 . . . 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 9 circumstances. Plaintiff contends that his physical health conditions and the complexities of this 10 case require that counsel be appointed to expedite trial so Plaintiff can die surrounded by family 11 instead of being incarcerated. See generally ECF No. 54. Plaintiff does not claim that his 12 declining health has affected his ability to properly articulate his claim. To the contrary based on 13 the pleadings he has shown his ability to adequately articulate his claims. Moreover, Plaintiff has 14 not demonstrated any particular likelihood of success on the merits of the claim. As such, Plaintiff 15 has not demonstrated exceptional circumstances warranting the appointment of counsel. 16 17 Accordingly, IT IS HEREBY ORDERED that Plaintiff’s request for the appointment of counsel, ECF No. 54, is denied. 18 19 Dated: January 17, 2023 ____________________________________ DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 2

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