Robben v. El Dorado County et al
Filing
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ORDER signed by Magistrate Judge Craig M. Kellison on 9/19/2017 DENYING plaintiff's 6 request for the appointment of counsel. (Yin, K)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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TODD ROBBEN,
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No. 2:16-cv-2698-JAM-CMK-P
Plaintiff,
vs.
ORDER
EL DORADO COUNTY, et. al.,
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. Plaintiff seeks the appointment of counsel. The United States Supreme Court
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has ruled that district courts lack authority to require counsel to represent indigent prisoners in
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§ 1983 cases. See Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain
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exceptional circumstances, the court may request the voluntary assistance of counsel pursuant to
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28 U.S.C. § 1915(e)(1). See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v.
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Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). A finding of “exceptional
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circumstances” requires an evaluation of both the likelihood of success on the merits and the
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ability of the plaintiff to articulate his claims on his own in light of the complexity of the legal
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issues involved. See Terrell, 935 F.2d at 1017. Neither factor is dispositive and both must be
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viewed together before reaching a decision. See id.
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In the present case, the court does not at this time find the required exceptional
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circumstances. The only reason plaintiff provided for the appointment of counsel is due to the
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number of cases he has filed. This reason is not sufficient to show exceptional circumstances.
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This case involves claims of malicious prosecution, which are fairly straightforward and not
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particularly complex, either legally or factually. There is nothing in plaintiff’s motion or other
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filings indicate he is unable to comprehend these proceedings, and based on the filings in the case
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thus far, it would appear plaintiff has the ability to articulate his claims. Finally, as to the merits
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of plaintiff’s case, as will be addressed by separate order, this action is likely barred by Heck v.
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Humphrey, 512 U.S. 477 (1994). Therefore, at this time, the undersigned cannot find there is a
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reasonable likelihood that plaintiff will be successful on the merits of his case at this time.
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Accordingly, IT IS HEREBY ORDERED that plaintiff’s request for the
appointment of counsel (Doc. 6) is denied.
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DATED: September 19, 2017
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE
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