Branch v. Grannis, et al.,

Filing 381

ORDER DENYING 380 Motion to Appoint Counsel, without prejudice signed by Magistrate Judge Stanley A. Boone on 10/14/2022. (Lundstrom, T)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 LOUIS BRANCH, 13 ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL, WITHOUT PREJUDICE Plaintiff, 11 12 Case No. 1:08-cv-01655-SAB (PC) v. D. UMPHENOUR, (ECF No. 380) Defendant. 14 15 16 Plaintiff Louis Branch is proceeding pro se in this civil rights action filed pursuant to 42 17 U.S.C. § 1983. 18 Currently before the Court is Plaintiff’s motion for appointment of counsel, filed October 19 13, 2022. 20 There is no constitutional right to appointed counsel in this action, Rand v. Rowland, 113 21 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require any attorney to represent plaintiff 22 pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern 23 District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the 24 Court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 25 F.3d at 1525. 26 Without a reasonable method of securing and compensating counsel, the Court will seek 27 volunteer counsel only in the most serious and exceptional cases. In determining whether 28 “exceptional circumstances exist, the district court must evaluate both the likelihood of success 1 1 on the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 2 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). In the present case, the Court does not find the required exceptional circumstances. 3 4 Plaintiff seeks appointment of counsel due to various medical conditions and modified 5 programming at the prison. While the Court is sympathetic to Plaintiff’s medical conditions, 6 there is no showing that his case is exceptional or that he is unable to litigate this action on his 7 own behalf. Indeed, to date, Plaintiff has succeeded in filing an appeal and a fourth amended 8 complaint in which he stated a cognizable retaliation claim against Defendant Umphenour. 9 Further, the Court is faced with similar cases almost daily and lacks counsel to accept these 10 cases. While the Court recognizes that Plaintiff is at a disadvantage due to his pro se status and 11 his incarceration, the test is not whether Plaintiff would benefit from the appointment of counsel. 12 See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (“Most actions require 13 development of further facts during litigation and a pro se litigant will seldom be in a position to 14 investigate easily the facts necessary to support the case.”) The test is whether exception 15 circumstances exist and here, they do not. In addition, circumstances common to most prisoners, 16 such as lack of legal education and limited law library access, do not establish exceptional 17 circumstances that would warrant a request for voluntary assistance of counsel. Accordingly, 18 Plaintiff’s motion for the appointment of counsel is denied, without prejudice. 19 20 IT IS SO ORDERED. 21 Dated: October 14, 2022 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 2

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