Tunstall v. Bick et al

Filing 128

ORDER signed by Magistrate Judge Dennis M. Cota on 3/8/2022 DENYING 117 Motion to Appoint Counsel. (Henshaw, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT WILLAIM TUNSTALL, JR.,

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No. 2:16-CV-2604-KJM-DMC-P

Plaintiff,
v.

ORDER

JOSEPH BICK, 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. 117.

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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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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.

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Id. at 1017.

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In the present case, the Court does not at this time find the required exceptional

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circumstances. Plaintiff’s motion is unsupported by any statement of reasons why, in light of

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Plaintiff’s ability to litigate his claims on his own and the complexity of the case, counsel should

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be appointed.
Accordingly, IT IS HEREBY ORDERED that Plaintiff’s request for the
appointment of counsel, ECF No. 117, is denied.

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Dated: March 8, 2022
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DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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