The opinion
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8 IN THE UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
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11 LOUIS PEETS, No. 2:18-CV-2469-DJC-DMC-P
12 Plaintiff,
13 v. ORDER
14 RICHARD TOWNSEND,
15 Defendant.
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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 renewed motion for the appointment of
19 counsel. See ECF No. 96.
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
extremely unlikely that he would succeed on the merits.
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Id. at 1017.
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7 The Court last addressed Plaintiff’s requests for the appointment of counsel in July
8 2022. See ECF No. 79. The Court stated:
9 . . . Plaintiff has not demonstrated changed circumstances
since the last time the Court addressed his request for counsel. In the order
10 denying Plaintiff’s most recent motion for the appointment of counsel,
ECF No. 76, the Court again noted that Plaintiff failed to make any new
11 and substantive showing of exceptional circumstances which would
support such an appointment. The present motions, which are
12 substantively identical, also lack any such showing and thus are similarly
deficient.
13 Plaintiff’s motions refer to the explanation of
circumstances previously submitted to the Court, and state that although
14 prison officials served him with letters from the Court and Attorney
General, he has been unable to maintain his right to confidentiality
15 because he requires someone else to read them to him. However, Plaintiff
has still not provided any substantiation of such claims. This Court has
16 received no documentation regarding Plaintiff’s claimed visual
impairment or the degree to which it restricts his ability to represent his
17 own interests. In fact, Plaintiff has demonstrated on multiple occasions
that Americans with Disabilities Act [ADA] accommodations are
18 available to him, he is aware of how to utilize them, and he has in fact
used them. See, e.g., ECF Nos. 63, 68, 77-78. It remains unclear why
19 Plaintiff has not utilized these accommodations to have the letters he cites
in this motion read to him. Plaintiff has also made no showing that the
20 ADA accommodations available to him do not provide him the
opportunity to articulate his claims on his own in light of the complexity
21 of the issues involved. The Court yet again notes, as it did in its June 2,
2022, order, ECF No. 76, that Plaintiff has also failed to demonstrate any
22 particular likelihood that the action will conclude in his favor. While some
of Plaintiff’s claims have survived the pleading stage of litigation, no
23 discovery has been conducted and no evidence is presently before the
Court to allow for an evaluation of the merits of this case.
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ECF No. 79, pgs. 2-3.
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] As with his prior motions, Plaintiff cites in the current motion confidentiality
2 || concerns due to continued vision impairment. See ECF No. 96. And as with the prior motions,
3 || Plaintiff continues to fail to demonstrate exceptional circumstances. Specifically, Plaintiff has
4 || not provided the Court with documentation of his vision impairment, the extent of loss of the
5 || ability to read resulting from that impairment, or any indication of attempts to seek
6 || accommodation under the ADA. For these reasons, Plaintiff’s renewed motion for the
7 || appointment of counsel will be denied.
8 Since this matter was last before the Court, Plaintiff has appealed two prior
9 || interlocutory orders. On January 23, 2023, Plaintiff filed an appeal from the Court’s January 9,
10 | 2023, order granting Defendant’s unopposed motion to compel. See ECF No. 87. On March 1,
11 | 2023, the Ninth Circuit Court of Appeals issued an order dismissing this appeal for lack of
12 | jurisdiction. See ECF No. 93. The circuit court’s mandate issued on March 24, 2023. See ECF
13 || No. 94. Plaintiff filed a second appeal on February 9, 2023, challenging the Court’s July 25,
14 || 2022, order (discussed above) denying Plaintiffs prior motions for counsel. See ECF No. 90.
15 || This second appeal was processed to the circuit court and remains pending in the Ninth Circuit.
16 | The Court, therefore, will defer ruling on Defendant’s motion for terminating sanctions, filed on
17 || March 2, 2023, ECF No. 92, pending the Ninth Circuit’s resolution of Plaintiff's second appeal.
18 || Upon resolution of the second appeal, the Court will set a deadline for Plaintiff's opposition to
19 | Defendant’s motion for terminating sanctions, and for Defendant’s reply.
20 Accordingly, IT IS HEREBY ORDERED that Plaintiff's request for the
21 || appointment of counsel, ECF No. 96, is denied.
22 | Dated: April 28, 2023 Co
23 DENNIS M. COTA
4 UNITED STATES MAGISTRATE JUDGE
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