Gaines v. Virk et al

Filing 40

ORDER DENYING 37 Motion to Appoint Counsel signed by Magistrate Judge Jennifer L. Thurston on 10/18/2019. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARY LEE GAINES,

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Plaintiff,

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v.

Case No.: 1:16-cv-01689-LJO-JLT (PC)
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(Doc. 37)

OFFICER BEAVER,

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Defendant.

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On October 9, 2019, Plaintiff Mary Lee Gaines filed a motion seeking the appointment of

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counsel. (Doc. 37.) Plaintiffs do not have a constitutional right to appointed counsel in section

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1983 actions, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot

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require an attorney to represent plaintiffs under 28 U.S.C. § 1915(e)(1). See Mallard v. U.S. Dist.

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Court, 490 U.S. 296, 304-05 (1989). However, in “exceptional circumstances,” the Court may

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

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1525.

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Given that the Court has no reasonable method of securing and compensating counsel, the

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Court will seek volunteer counsel only in extraordinary cases. In determining whether

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“exceptional circumstances exist, a 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

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complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted).

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In the present case, the Court does not find the required exceptional circumstances. Even

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if it is assumed that Plaintiff is not well versed in the law and that she has made serious

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allegations that, if proven, would entitle her to relief, her case is not extraordinary. The Court is

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faced with similar cases almost daily. In addition, at this early stage in the proceedings, the Court

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cannot determine whether Plaintiff is likely to succeed on the merits; and, based on a review of

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the records in this case, the Court does not find that Plaintiff cannot adequately articulate her

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claims. See id. Although the Court appointed counsel for the limited purpose of drafting

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Plaintiff’s second amended complaint, (Doc. 23), nothing as crucial or complex as drafting a

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pleading is currently pending. In fact, since Defendants have yet to file a responsive pleading to

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Plaintiff’s complaint, nothing is pending for Plaintiff at this time.
Plaintiff contends that she requires counsel because she is ill. (Doc. 37, p. 1.) However,

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Plaintiff does not present evidence, such as medical evidence, that she is unable to articulate her

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claims due to her illness. To the extent that Plaintiff is concerned that health problems may hinder

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her ability to reply to orders of the Court in a timely manner, the Court notes that Plaintiff may

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seek reasonable extensions of time as necessary to respond to Court orders. The Court routinely

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grants extensions of time upon showings of good cause, which may include a health issue that

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impedes a party’s ability to timely respond to an order.

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Plaintiff also implies that she is at a disadvantage because the defendants have counsel

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while she does not. (Doc. 37, pp. 1-2.) However, although the Court recognizes that Plaintiff is at

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a disadvantage due to her pro se status, the test is not whether Plaintiff would benefit from the

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appointment of counsel. See Rand, 113 F.3d at 1525 (“any pro se litigant certainly would be

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better served with the assistance of counsel”). Rather, the test is whether exceptional

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circumstances exist. The Court finds that, at present, they do not. For the foregoing reasons,

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Plaintiff’s motion for the appointment of counsel is DENIED without prejudice.

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IT IS SO ORDERED.
Dated:

October 18, 2019

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
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