Alem v. California Department of Corrections and Rehabilitation et al

Filing 62

ORDER signed by Magistrate Judge Dennis M. Cota on 11/05/21 DENYING 59 Motion to Appoint Counsel. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DANIEL ALEM,

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No. 2:17-CV-0343-KJM-DMC-P
Plaintiff,

v.

ORDER

M. CURRY,
Defendant.

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action. Pending
before the Court is Plaintiff’s motion, ECF No. 59, for the appointment of counsel.
The United States Supreme Court has ruled that district courts lack authority to

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require counsel to represent indigent prisoners in civil rights cases. See Mallard v. United States

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Dist. Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the court may

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request the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). See Terrell v.

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Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36

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(9th Cir. 1990). A finding of “exceptional circumstances” requires an evaluation of both the

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likelihood of success on the merits and the ability of the plaintiff to articulate his claims on his

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own in light of the complexity of the legal issues involved. See Terrell, 935 F.2d at 1017.

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Neither factor is dispositive and both must be viewed together before reaching a decision. See id.

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In Terrell, the Ninth Circuit concluded the district court did not abuse its discretion with respect
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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.

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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. According to Plaintiff, appointment of counsel is warranted because: (1) he

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cannot afford to retain counsel; (2) Plaintiff being transferred to and from court might delay the

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trial; (3) Plaintiff has no law library access due to COVID-19 restrictions; (4) the issues involved

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in this case are complex. See ECF No. 59, pgs. 1-2. These circumstances are generally common

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among prisoners and are not the types of exceptional circumstances necessary for the appointment

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of counsel. In addition, the case is not particularly complex. Plaintiff’s filings suggest a

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sufficient ability to litigate and articulate his one claim against the one defendant. Finally,

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Plaintiff has not argued the likelihood of success on the merits. Plaintiff has made cognizable

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claims and passed summary judgment thus far, which indicates the possibility of success. But it

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is of course not dispositive as to Plaintiff’s likelihood of success.

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Accordingly, IT IS HEREBY ORDERED that Plaintiff’s request for the
appointment of counsel, ECF No. 59, is denied.

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Dated: November 5, 2021
____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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