McCoy v. Holguin et al

Filing 169

ORDER DENYING Plaintiff's 166 Motion to Appoint Counsel signed by Magistrate Judge Helena M. Barch-Kuchta on 11/10/2021. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LAKEITH L. MCCOY,

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Plaintiff,

Case No. 1:15-cv-00768-DAD-HBK
ORDER DENYING PLAINTIFF'S MOTION
TO APPOINTC COUNSEL

v.
(Doc. No. 166)
A. HOLGUIN, ET. AL.,
Defendants.

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Pending before the Court is Plaintiff’s motion to appoint counsel, filed on October 29,

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2021. (Doc. No. 166). Plaintiff, who is proceeding pro se, is currently incarcerated at Kern

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Valley State Prison and proceeding on his Second Amended Complaint filed under 42 U.S.C. §

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1983 raising Eighth Amendment violations stemming from an alleged excessive use of force and

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failure to intervene claims. (Doc. No. 15).

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On September 27, 2021, the district court granted pro bono counsel’s motion to withdraw

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and denied Plaintiff’s motion to appoint counsel. (Doc. No. 164). Briefly stated, Plaintiff had a

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disagreement with appointed pro bono counsel, did not oppose his pro bono counsel’s

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withdrawal. Plaintiff believed that his attorney could not adequately represent him due to a

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conflict of interest because they could not agree how to proceed in litigating the case. (Id. at 2)

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(citing Doc. No. 162 at 3-4). In denying Plaintiff’s second motion to appoint new pro bono

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counsel, the district court noted that Plaintiff no longer shows exceptional circumstances exist to

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warrant a new, pro bono attorney. (Id. at 3).
Plaintiff’s renewed motion for appointment of counsel again requests appointment of new

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pro bono counsel. In support, Plaintiff notes that he successfully defeated summary judgment

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motions, but argues inter alia that: his case is complex; he is not permitted enough time in the

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library to prosecute his case; many resources are only available electronically and cannot be

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accessed in a prisoner’s cell; he anticipates being transferred to a different correctional institution;

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and copies of materials are often delayed up to two weeks. (Doc. No. 166 at 2-6). Although

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unrelated to his instant motion, Plaintiff belabors his concerns with the prior pro bono counsel.

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As Plaintiff was previously advised, the United States Constitution does not require

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appointment of counsel in civil cases. See Lewis v. Casey, 518 U.S. 343, 354 (1996) (explaining

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Bounds v. Smith, 430 U.S. at 817, did not create a right to appointment of counsel in civil cases).

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Under 28 U.S.C. § 1915, this court has discretionary authority to appoint counsel for an indigent

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to commence, prosecute, or defend a civil action. See 28 U.S.C. § 1915(e)(1) (stating the court

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has authority to appoint counsel for people unable to afford counsel); see also United States v.

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McQuade, 519 F.2d 1180 (9th Cir. 1978) (addressing relevant standard of review for motions to

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appoint counsel in civil cases) (other citations omitted). However, motions to appoint counsel in

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civil cases are granted only in “exceptional circumstances.” Id. at 1181. The Court may consider

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many factors to determine if exceptional circumstances warrant appointment of counsel

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including, but not limited to, proof of indigence, the likelihood of success on the merits, and the

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ability of the plaintiff to articulate his or her claims pro se in light of the complexity of the legal

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issues involved. Id.; see also Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn

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in part on other grounds on reh’g en banc, 154 F.2d 952 (9th Cir. 1998).

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Indeed, Plaintiff no longer meets his “burden of demonstrating exceptional

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circumstances.” Jones v. Chen, 2014 WL 12684497, at *1 (E.D. Cal. Jan. 14, 2014). Many of

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the issues Plaintiff raises in the instant motion are circumstances faced by all prisoners litigating

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civil rights actions. Courtney v. Kandel, 2020 WL 1432991 at *1 (E.D. Cal. Mar. 24, 2020)

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(noting challenges preparing for trial are ordinary for prisoners pursuing civil rights claim and

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cannot form the basis for appointment of counsel). Nor does Plaintiff state that he has attempted
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to secure alternative counsel, after pro bono counsel was granted leave to withdraw, to no avail.

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Gulley v. Dzuenda, 686 F. Supp. 2d. 173, 174 (D. Conn. Feb. 25, 2010)(denying prisoner-plaintiff

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subsequent motion to appoint counsel after counsel withdrew when plaintiff made no new

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attempts to find an attorney).
Plaintiff was previously granted pro bono counsel, but due to Plaintiff’s disagreements

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with counsel’s litigation strategy, pro bono counsel’s unopposed motion to withdraw was granted.

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Volunteer lawyer time is valuable and is a limited commodity. Considering the record in this

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case, Plaintiff’s position with his prior pro bono attorney, and as Plaintiff notes, his success

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overcoming Defendants’ summary judgment motions while proceeding pro se, the Court finds

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Plaintiff has not demonstrated exceptional circumstances. Indeed, Plaintiff has demonstrated his

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ability to proceed pro se in this case. See Barnes v. Alves, 10 F. Supp. 3d 382 (W.D. N.Y. March

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20, 2014) (denying subsequent motions to appoint counsel after prior pro bono counsel withdrew

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due to plaintiff’s treatment of pro bono counsel).

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Accordingly, it is ORDERED:

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Plaintiff’s motion to appoint counsel (Doc. No. 166) is DENIED.

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Dated:

November 10, 2021
HELENA M. BARCH-KUCHTA
UNITED STATES MAGISTRATE JUDGE

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