(PC) Rice v. Boulware

Opinion

ROYLAND RICE, No. 2:20-CV-1752-KJM-DMC-P Plaintiff, v. ORDER A.W. BOULWARE, et al., Defendants. Plaintiff, a prisoner proceeding pro se, brings this civil rights action. Pending before the Court is Plaintiff’s motion, ECF No. 15, 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 civil rights 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. According to Plaintiff, appointment of counsel is warranted because: (1) he is indigent; (2) he has been granted in forma pauperis status; (3) he is incarcerated; (4) a trial will likely involve conflicting testimony; and (5) he has been unable to retain counsel. See ECF No. 15, pgs. 1-2. These are not exceptional circumstances. To the contrary, they are common among inmate litigants. Further, a review of the docket reflects that Plaintiff is able to articulate his claims on his own. Additionally, the legal and factual issues involved in this case, which asserts a denial of access to the courts in violation of the First Amendment, are not overly complex. Finally, at this early stage of the proceedings before any defendant has responded to the complaint, the Court cannot say that Plaintiff has demonstrated any particular likelihood of success on the merits. Accordingly, IT IS HEREBY ORDERED that Plaintiffs request for the appointment of counsel, ECF No. 15, is denied. Dated: April 13, 2021 UNITED STATES MAGISTRATE JUDGE