Davis v. Wheeler et al

Filing 49

ORDER signed by Magistrate Judge Dennis M. Cota on 9/23/2020 DENYING 37 and 44 Motions 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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ANTHONY DAVIS,

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No. 2:16-CV-2917-TLN-DMC-P

Plaintiff,
v.

ORDER

Z. WHEELER, 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. Pending before the Court are Plaintiff’s motions for the appointment of counsel

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(ECF Nos. 37 and 44).

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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.
Id. at 1017.
In the present case, the Court does not at this time find the required exceptional

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circumstances. Plaintiff argues that he should receive appointed counsel because: (1) he is a

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patient with “developmental disabilities”; (2) he has been denied law library access and access to

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stationary; and (3) he requires professional assistance to conduct proper discovery. However,

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despite these assertions, the Court is unconvinced that Plaintiff is entitled to assistance by this

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Court is obtaining counsel. Plaintiff claims to suffer from mental impairments, however, Plaintiff

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does not describe what these impairments are, nor how they frustrate his ability to litigate his

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claims. Quite the contrary, the docket reflects that Plaintiff has articulated his claims sufficient to

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pass screening and has drafted multiple motions for injunctive relief. Also, to the extent that

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Plaintiff argues he lacks either the resources or expertise to properly litigate his claims, the Court

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notes that such a condition is common among pro se litigants and does not present an

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“exceptional circumstance.”

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Accordingly, IT IS HEREBY ORDERED that Plaintiff’s requests for the
appointment of counsel (ECF Nos. 37 and 44) are denied.

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Dated: September 23, 2020
____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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