(PC) Smith v. Diez

Opinion

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LARRY SMITH, No. 2:20-CV-0071-DAD-DMC-P 12 Plaintiff, 13 v. ORDER 14 CONNIE GIPSON, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Pending before the Court is Plaintiff’s motion for the appointment of counsel, 19 ECF No. 83. 20 The United States Supreme Court has ruled that district courts lack authority to 21 require counsel to represent indigent prisoners in § 1983 cases. See Mallard v. United States Dist. 22 Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the court may request the 23 voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). See Terrell v. Brewer, 935 24 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 25 A finding of “exceptional circumstances” requires an evaluation of both the likelihood of success 26 on the merits and the ability of the plaintiff to articulate his claims on his own in light of the 27 complexity of the legal issues involved. See Terrell, 935 F.2d at 1017. Neither factor is 28 dispositive, and both must be viewed together before reaching a decision. See id. In Terrell, the 1 | Ninth Circuit concluded the district court did not abuse its discretion with respect to appointment 2 | of counsel because: 3 ... Terrell demonstrated sufficient writing ability and legal knowledge to articulate his claim. The facts he alleged and the issues he raised were not 4 of substantial complexity. The compelling evidence against Terrell made it 5 extremely unlikely that he would succeed on the merits. Id. at 1017. 6 7 In the present case, the Court does not at this time find the required exceptional 8 | circumstances. Plaintiff argues appointment of counsel is warranted based on the following 9 | statement: 10 On April 4, 2025, at 1030 hour, at Doctor’s Line with Dr. A. Mohammed, who informed Plaintiff, who has been refusing antibiotics for 11 spinal bacterial infection since Jan. 15, 2025 (as a mean of protesting inadequate medical care at R.J.D. Prison), which Plaintiff is required to 12 take twice daily for life, that he would be sent to an outside hospital for treatment. Plaintiff does not know how [long] this treatment will take but 13 will keep the court informed. However, Plaintiff prays the court will 14 appoint counsel to represent him in any upcoming court dates! ECF No. 83. 15 16 | Plaintiff's treatment at an outside facility following Plaintiff’s refusal to take required medical 17 || does not present an exceptional circumstance warranting the appointment of counsel. Moreover, 18 || the docket reflects that, to date, Plaintiff has been able to articulate his claims and arguments. 19 || Next, the Court does not find that the facts or law related to Plaintiffs case are overly 20 || complicated. 21 Accordingly, IT IS HEREBY ORDERED that Plaintiff's request for the 22 || appointment of counsel, ECF No. 83, is denied. 23 24 || Dated: June 9, 2025 Co 2 DENNIS M. COTA 26 UNITED STATES MAGISTRATE JUDGE 27 28