(PC) Wilkins v. Joksch

Opinion

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KEENAN WILKINS, also known as No. 2:18-CV-2518-MCE-DMC-P Nerrah Brown, 12 Plaintiff, 13 ORDER v. 14 C. JOKSCH, et al., 15 Defendants. 16

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 motion for the appointment of counsel 20 and an extension of time. See ECF No. 88. 21 The United States Supreme Court has ruled that district courts lack authority to 22 require counsel to represent indigent prisoners in § 1983 cases. See Mallard v. United States Dist. 23 Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the Court may request the 24 voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). See Terrell v. Brewer, 935 25 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 26 A finding of “exceptional circumstances” requires an evaluation of both the likelihood of success 27 on the merits and the ability of the plaintiff to articulate his claims on his own in light of the 28 complexity of the legal issues involved. See Terrell, 935 F.2d at 1017. Neither factor is 1 | dispositive and both must be viewed together before reaching a decision. See id. In Terrell, the 2 || Ninth Circuit concluded the district court did not abuse its discretion with respect to appointment 3 || of counsel because: 4 ... Terrell demonstrated sufficient writing ability and legal knowledge to articulate his claim. The facts he alleged and the issues he raised were not 5 of substantial complexity. The compelling evidence against Terrell made it ‘ extremely unlikely that he would succeed on the merits.

4 Id. at 1017.

8 In the present case, the Court does not at this time find the required exceptional 9 || circumstances. Plaintiff argues appointment of counsel is warranted because there is a likelihood 10 || of success on the merits of his claim, he is indigent, and he is untrained in the law. As to the last 11 || two reasons, the Court finds that these are typical and not extraordinary circumstances. As to 12 | likelihood of success on the merits, the docket reflects a pending motion to dismiss the second 13 || amended complaint. Until this motion is resolved in Plaintiffs favor, the Court cannot say that 14 | Plaintiff has established any particular likelihood of success on the merits. Finally, a review of 15 || the docket reflects that Plaintiff has to date been able to present his claims on his own without the 16 || assistance of counsel. Plaintiff's request for the appointment of counsel will be denied. 17 The Court will, however, grant Plaintiff additional time to file a pro se opposition 18 || to Defendant Foulk’s motion to dismiss. 19 Accordingly, IT IS HEREBY ORDERED as follows: 20 1. Plaintiffs request for the appointment of counsel, ECF No. 88, is denied. 21 2. Plaintiff's request for a 30-day extension of time to file an opposition to 22 || Defendant Foulk’s motion to dismiss, ECF No. 88, is granted. 23 3. Plaintiff's opposition is due within 30 days of the date of this order. 24 | Dated: March 19, 2024 Co 2 DENNIS M. COTA 26 UNITED STATES MAGISTRATE JUDGE 27 28