Calloway v. California Department of Corrections and Rehabilitation et al
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
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
JAMISI JERMAINE CALLOWAY,
CALIFORNIA DEPARTMENT OF
REHABILITATION, 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,
ECF No. 54.
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
Case 2:16-cv-02532-WBS-DMC Document 55 Filed 01/17/23 Page 2 of 2
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. Plaintiff contends that his physical health conditions and the complexities of this
case require that counsel be appointed to expedite trial so Plaintiff can die surrounded by family
instead of being incarcerated. See generally ECF No. 54. Plaintiff does not claim that his
declining health has affected his ability to properly articulate his claim. To the contrary based on
the pleadings he has shown his ability to adequately articulate his claims. Moreover, Plaintiff has
not demonstrated any particular likelihood of success on the merits of the claim. As such, Plaintiff
has not demonstrated exceptional circumstances warranting the appointment of counsel.
Accordingly, IT IS HEREBY ORDERED that Plaintiff’s request for the
appointment of counsel, ECF No. 54, is denied.
Dated: January 17, 2023
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?