(PC) Negrete v. Hlaing

Filing 39

ORDER signed by Magistrate Judge Dennis M. Cota on 10/16/2020 DENYING 37 Third Request for Appointment of 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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JOSE NEGRETE,

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No. 2:19-CV-1653-WBS-DMC-P
Plaintiff,

v.

ORDER

MIN MIN HLAING,
Defendant.

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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 is Plaintiff’s third motion to appoint counsel, see

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ECF No. 37, filed less than a month after the Court denied Plaintiff’s second such motion.

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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 motion, Plaintiff simply reiterates the arguments previously rejected

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by the Court without providing additional support. Accordingly, IT IS HEREBY ORDERED that
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Plaintiff’s third request for the appointment of counsel, ECF No. 37, is denied.
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Dated: October 16, 2020
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____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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