(PC) Calloway v. CDCR

Opinion

1 2 3 4 5 6 7 10 11 JAMISI JERMAINE CALLOWAY, No. 2:16-CV-2532-WBS-DMC-P 12 Plaintiff, 13 v. ORDER CORRECTIONS AND 15 REHABILITATION, et al., 16 Defendants. 17 18 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 19 42 U.S.C. § 1983. Pending before the Court is Plaintiff’s renewed motion for the appointment of 20 counsel and to stay discovery, ECF No. 94. Also before the Court is Plaintiff’s motion for an 21 extension of time, ECF No. 102. 22 The United States Supreme Court has ruled that district courts lack authority to 23 require counsel to represent indigent prisoners in § 1983 cases. See Mallard v. United States Dist. 24 Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the court may request the 25 voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). See Terrell v. Brewer, 935 26 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 27 A finding of “exceptional circumstances” requires an evaluation of both the likelihood of success 28 on the merits and the ability of the plaintiff to articulate his claims on his own in light of the 1 complexity of the legal issues involved. See Terrell, 935 F.2d at 1017. Neither factor is 2 dispositive, and both must be viewed together before reaching a decision. See id. In Terrell, the 3 Ninth Circuit concluded the district court did not abuse its discretion with respect to appointment 4 of counsel because:

5 . . . Terrell demonstrated sufficient writing ability and legal knowledge to articulate his claim. The facts he alleged and the issues he raised were not 6 of substantial complexity. The compelling evidence against Terrell made it extremely unlikely that he would succeed on the merits. 7 Id. at 1017. 8 9 In the present case, the Court does not at this time find the required exceptional 10 circumstances. Plaintiff contends that his physical health conditions and the complexities of this 11 case require that counsel be appointed. See ECF No. 94. Plaintiff does not assert that his 12 declining health has affected his ability to properly articulate his claims. To the contrary based on 13 the pleadings and other filings in this case, Plaintiff has shown his ability to adequately articulate 14 his claims notwithstanding his health issues. In particular, the Court notes that, since filing the 15 pending motion for appointment of counsel, Plaintiff has filed a motion for an extension of time 16 as well as an opposition to a pending motion to compel. See ECF Nos. 102 and 103. 17 Additionally, Plaintiff has not demonstrated any particular likelihood of success on the merits of 18 this case. As such, Plaintiff has not demonstrated exceptional circumstances warranting the 19 appointment of counsel. 20 In his motion for an extension of time, Plaintiff seeks additional time to file an 21 opposition to a motion to compel filed by Defendants Abu, Duffy, and Clark.1 See ECF No. 102. 22 Good cause appearing therefor, Plaintiff’s motion will be granted, and the opposition brief filed 23 on June 16, 2025, ECF No. 103, shall be deemed timely. Defendants Abu, Duffy, and Clark have 24 filed a reply and their motion to compel will be addressed by separate order. 25 / / / 26 / / / 27 1 A separate motion to compel was filed by Defendant Segriddy on June 11, 2025. See ECF No. 28 101. The Court will provide Plaintiff additional time to respond to that motion. ] Accordingly, IT IS HEREBY ORDERED as follows: 2 1. Plaintiff's renewed request for the appointment of counsel and to stay 3 || discovery, ECF No. 94, is denied. 4 2. Plaintiff's motion for an extension of time, ECF No. 102, is granted. 5 3. Plaintiff's opposition brief filed on June 16, 2025, ECF No. 103, is deemed 6 || timely. 7 4. Plaintiff's opposition to Defendant Segriddy’s motion to compel, ECF No. 8 | 101, is due within 30 days of the date of this order. 9 10 | Dated: July 3, 2025 Ss..c0_, DENNIS M. COTA 2 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28