IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
January 10, 2011
MOODY WOODROW TANKSLEY,
CALIFORNIA DEPARTMENT OF CORRECTIONS, ET. AL., DEFENDANTS.
The opinion of the court was delivered by: Sidney R. Thomas, United States Circuit Judge
On December 28, 2010, plaintiff Moody Woodrow Tanksley filed a Motion for Appointment of Counsel pursuant to 28 U.S.C. § 1915(e)(1). Plaintiff alleges that he cannot afford to hire a lawyer, that the issues in the case are complex, and that a lawyer would assist him in presentation of evidence and cross-examination of witnesses.
There is no constitutional right to appointed counsel in an action under 42 U.S.C. § 1983. See Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). However, a court may appoint counsel to a § 1983 plaintiff under 28 U.S.C. § 1915(e)(1) if it finds "exceptional circumstances." Agyeman v. Corrections Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004); see also Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (explaining evolution of exceptional circumstances requirement). "A finding of exceptional circumstances requires evaluation of both 'the likelihood of success on the merits and the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved.' Neither of these factors is dispositive and both must be viewed together before reaching a decision." Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (quoting Wilborn, 789 F.2d at 1331).
At this stage in the litigation, Tanksley has not demonstrated a high likelihood of success on the merits. Furthermore, the facts giving rise to Plaintiff's cause of action, and the legal issues raised thereby, are not of substantial complexity. Although Plaintiff may be advantaged by counsel, the Court cannot find the exceptional circumstances required by § 1915(e)(1). See Terrell, 935 F.3d at 1017 (finding no exceptional circumstances justifying appointment of counsel in similar factual scenario).
For the reasons set forth above, the Court DENIES without prejudice Plaintiff's Motion for Appointment of Counsel pursuant to 28 U.S.C. § 1915(e)(1).
Sitting by Designation
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