Opinion
2:20-CV-1802-KJM-DMC-P
02-15-2023
DOUGLAS L. HOPPER, Plaintiff, v. GAVIN NEWSOM, et al., Defendants.
ORDER
DENNIS M. COTA, UNITED STATES MAGISTRATE JUDGE
Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the Court is Plaintiff's motion, ECF No. 33, 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 § 1983 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. Plaintiff states that appointment of counsel is warranted because he has a vision impairment and has been experiencing difficulties access equipment in the prison law library for use by inmates with vision impairments. See ECF No. 33. While unusual, these circumstances are not exceptional. The Court has been able to accommodate Plaintiff's issues with various extensions of time. Further, as Plaintiff has not yet submitted a second amended complaint appropriate for service, the Court cannot say that Plaintiff has at this time demonstrated any particular likelihood of success on the merits. Finally, despite Plaintiff's vision impairment, the docket reflects that he has been able to articulate his claims on his own.
Accordingly, IT IS HEREBY ORDERED that Plaintiff's request for the appointment of counsel, ECF No. 33, is denied.