Robben v. El Dorado County et al
ORDER signed by Magistrate Judge Craig M. Kellison on 9/19/2017 DENYING plaintiff's 6 request for the appointment of counsel. (Yin, K)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
EL DORADO COUNTY, et. al.,
Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to
42 U.S.C. § 1983. Plaintiff seeks the appointment of counsel. 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 dispositive and both must be
viewed together before reaching a decision. See id.
In the present case, the court does not at this time find the required exceptional
circumstances. The only reason plaintiff provided for the appointment of counsel is due to the
number of cases he has filed. This reason is not sufficient to show exceptional circumstances.
This case involves claims of malicious prosecution, which are fairly straightforward and not
particularly complex, either legally or factually. There is nothing in plaintiff’s motion or other
filings indicate he is unable to comprehend these proceedings, and based on the filings in the case
thus far, it would appear plaintiff has the ability to articulate his claims. Finally, as to the merits
of plaintiff’s case, as will be addressed by separate order, this action is likely barred by Heck v.
Humphrey, 512 U.S. 477 (1994). Therefore, at this time, the undersigned cannot find there is a
reasonable likelihood that plaintiff will be successful on the merits of his case at this time.
Accordingly, IT IS HEREBY ORDERED that plaintiff’s request for the
appointment of counsel (Doc. 6) is denied.
DATED: September 19, 2017
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE
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