Luna v. Moon, et al.

Filing 78

ORDER DENYING, without Prejudice, Plaintiff's 77 Motion to Appoint Counsel signed by Magistrate Judge Stanley A. Boone on 9/17/2019. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EDWARD LUNA,

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Plaintiff,
v.
DR. MOON, et al.,

Case No. 1:16-cv-00313-LJO-SAB (PC)
ORDER DENYING, WITHOUT PREJUDICE,
PLAINTIFF’S MOTION FOR
APPOINTMENT OF COUNSEL
(ECF No. 77)

Defendants.

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Plaintiff Edward Luna is a state prisoner proceeding pro se and in forma pauperis in this
civil rights action pursuant to 42 U.S.C. § 1983.
Currently before the Court is Plaintiff’s motion for appointment of counsel, filed on

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September 16, 2019. (ECF No. 77.) Plaintiff asserts that he needs the assistance of counsel to

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prosecute this action because he cannot afford to hire a lawyer, his imprisonment greatly limits

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his ability to litigate this case, especially regarding discovery, the issues in this case are complex

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and he has never been a party to a civil proceeding before, and a lawyer would assist Plaintiff in

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the presentation of evidence at trial and the cross-examination of opposing witnesses. (Id.) The

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Court finds that a response from Defendants is unnecessary and Plaintiff’s motion is deemed

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submitted. Local Rule 230(l).

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Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v.

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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require any attorney to

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represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1), Mallard v. United States District Court for

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the Southern District of Iowa, 490 U.S. 296, 298 (1989). Nevertheless, in certain exceptional

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

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Without a reasonable method of securing and compensating counsel, the Court will seek

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volunteer counsel only in the most serious and exceptional cases.

In determining whether

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“exceptional circumstances exist, the district court must evaluate both the likelihood of success on

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the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity

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of the legal issues involved.” Id. (internal quotation marks and citations omitted). “Neither of

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these considerations is dispositive and instead must be viewed together.” Palmer v. Valdez, 560

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F.3d 965, 970 (9th Cir. 2009). The burden of demonstrating exceptional circumstances is on the

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plaintiff. Id.

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The Court has considered Plaintiff’s request for appointed counsel, but does not find the

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required exceptional circumstances. Initially, circumstances common to most prisoners, such as

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lack of legal education, limited law library access, and lack of funds to hire counsel, do not alone

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establish the exceptional circumstances that would warrant appointment of counsel. Specifically,

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Plaintiff’s apprehension with pursuing this case on his own, while understandable, is not sufficient

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grounds for appointing counsel. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)

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(“Most actions require development of further facts during litigation and a pro se litigant will

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seldom be in a position to investigate easily the facts necessary to support the case.”). Finally,

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based on a review of the record, the Court finds that the legal issues in this case do not appear to be

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particularly complex and that Plaintiff can adequately articulate his claims.
Accordingly, Plaintiff’s motion for appointment of counsel, (ECF No. 77), is HEREBY

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DENIED, without prejudice.

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IT IS SO ORDERED.
Dated:

September 17, 2019
UNITED STATES MAGISTRATE JUDGE

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