Branch v. Grannis, et al.,

Filing 395

ORDER DENYING 394 Plaintiff's Motion for Appointment of Counsel, signed by Magistrate Judge Stanley A. Boone on 4/4/2023. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LOUIS BRANCH,

ORDER DENYING PLAINTIFF’S MOTION
FOR APPOINTMENT OF COUNSEL

Plaintiff,

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Case No. 1:08-cv-01655-SAB (PC)

v.
(ECF No. 394)

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D. UMPHENOUR,
Defendant.

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Louis Branch (“Plaintiff”), a state prisoner proceeding pro se and in forma pauperis, filed

12 this civil rights action pursuant to 42 U.S.C. § 1983.
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This case is currently set for jury trial on May 23, 2023. (ECF No. 386.) The parties

14 pretrial statements were due on or before March 14, 2023, and the pretrial conference is
15 scheduled for April 7, 2023, at 9:30 a.m. (Id.)
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Although Defendant filed a motion to modify the scheduling order on March 17, 2023

17 (ECF No. 387), neither party filed their pretrial statement. Therefore, on March 20, 2023, the
18 Court ordered the parties to show cause within five days as to why sanctions should not be
19 imposed. (ECF No. 389.)
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Defendant filed a response to the order to show cause, as well as the pretrial statement on

21 March 24, 2023. (ECF Nos. 390, 391.) Plaintiff filed a response to the order to show cause on
22 April 3, 2023. (ECF No. 394.) Therein, Plaintiff states he has “no pretrial statement to file
23 without the assistance of counsel,” because his “litigious efforts are compromised by disease, age
24 and depression.” (Id. at 1.)
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Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v.

26 Rowland, 113 F.3d 1520, 1525 (9th Cir.1997), and the court cannot require an attorney to
27 represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court
28 for the Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional

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circumstances the court may request the voluntary assistance of counsel pursuant to section
1915(e)(1). Rand, 113 F.3d at 1525.

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Without a reasonable method of securing and compensating counsel, the court will seek
volunteer counsel only in the most serious and exceptional cases. In determining whether
“exceptional circumstances exist, the district court must evaluate both the likelihood of success
on the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the
complexity of the legal issues involved.” Rand, 113 F.3d at 1525. (internal quotation marks and
citations omitted).

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As an initial matter, the Court’s ability to refer cases for the appointment of pro bono
counsel in the Eastern District of California, Fresno Division, is very limited because it does not
have an available pool of attorneys from which to select to serve as pro bono counsel,
particularly post-COVID-19 pandemic. Thus, the Court can only request the voluntary
assistance of counsel in exceptional circumstances.

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In the present case, the Court does not find the required exceptional circumstances. First,
the Court cannot make a determination regarding the likelihood of success on Plaintiff's claims.
This matter will be presented to a jury for determination. Second, and more importantly, Plaintiff
has been able to adequately articulate his claims in this action. Indeed, Plaintiff demonstrated has
demonstrated his apparent ability to understand proceedings and present coherent arguments by
way of filings in this action. Further, the Court finds that Plaintiff’s retaliation claim against
Defendant Umphenour to be straightforward and not complex. For these reasons, Plaintiff's
motion for the appointment of counsel is denied.

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Dated:

April 4, 2023
UNITED STATES MAGISTRATE JUDGE

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