(PC) Solomon v. Sheldon
ORDER signed by Magistrate Judge Dennis M. Cota on 11/18/20 DENYING 63 Motion to Appoint Counsel. (Plummer, M)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to
42 U.S.C. § 1983. Pending before the Court is Plaintiff’s second motion, ECF No. 63, for 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 Terrell, the
Ninth Circuit concluded the district court did not abuse its discretion with respect 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.
Id. at 1017.
In the present case, the Court does not at this time find the required exceptional
circumstances. Plaintiff states that the following factors warrant appointment of counsel:
(1) indigency; (2) extended lock-down; (3) complexity of issues; and (4) inability to retain
counsel. See ECF No. 63. The Court does not find these circumstances exceptional. A review of
the docket reflects that Plaintiff has been able to sufficiently articulate his claims on his own.
Further, at this stage of the proceedings, the Court cannot say that Plaintiff has established any
particular likelihood of success on the merits. Finally, contrary to Plaintiff’s suggestion, the
factual and legal issues involved in this case, which presents an Eighth Amendment excessive
force claim, are not complex.
Accordingly, IT IS HEREBY ORDERED that Plaintiff’s second motion for the
appointment of counsel, ECF No. 63, is denied.
Dated: November 18, 2020
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?