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Alem v. Curry

United States District Court, Eastern District of California
Nov 5, 2021
2:17-CV-0343-KJM-DMC-P (E.D. Cal. Nov. 5, 2021)

Opinion

2:17-CV-0343-KJM-DMC-P

11-05-2021

DANIEL ALEM, Plaintiff, v. M. CURRY, Defendant.


ORDER

DENNIS M. COTA, UNITED STATES MAGISTRATE JUDGE

Plaintiff, a prisoner proceeding pro se, brings this civil rights action. Pending before the Court is Plaintiff's motion, ECF No. 59, 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 cannot afford to retain counsel; (2) Plaintiff being transferred to and from court might delay the trial; (3) Plaintiff has no law library access due to COVID-19 restrictions; (4) the issues involved in this case are complex. See ECF No. 59, pgs. 1-2. These circumstances are generally common among prisoners and are not the types of exceptional circumstances necessary for the appointment of counsel. In addition, the case is not particularly complex. Plaintiffs filings suggest a sufficient ability to litigate and articulate his one claim against the one defendant. Finally, Plaintiff has not argued the likelihood of success on the merits. Plaintiff has made cognizable claims and passed summary judgment thus far, which indicates the possibility of success. But it is of course not dispositive as to Plaintiffs likelihood of success.

Accordingly, IT IS HEREBY ORDERED that Plaintiffs request for the appointment of counsel, ECF No. 59, is denied.


Summaries of

Alem v. Curry

United States District Court, Eastern District of California
Nov 5, 2021
2:17-CV-0343-KJM-DMC-P (E.D. Cal. Nov. 5, 2021)
Case details for

Alem v. Curry

Case Details

Full title:DANIEL ALEM, Plaintiff, v. M. CURRY, Defendant.

Court:United States District Court, Eastern District of California

Date published: Nov 5, 2021

Citations

2:17-CV-0343-KJM-DMC-P (E.D. Cal. Nov. 5, 2021)