Dickson v. Gomez et al

Filing 69

ORDER DENYING 68 Motion to Appoint Counsel, signed by Magistrate Judge Barbara A. McAuliffe on 4/19/21. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CHRISTOPHER DICKSON,

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Plaintiff,

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ORDER DENYING MOTION TO APPOINT
COUNSEL

v.

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Case No. 1:17-cv-00294-DAD-BAM (PC)

GOMEZ, et al.,

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(ECF No. 68)
Defendants.

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Plaintiff Christopher Dickson (“Plaintiff”) is a state prisoner proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds

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against Defendants Gomez, Rios, and Martinez for excessive force and against Defendants

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Duncan and Esparza for violations of Plaintiff’s due process rights.

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Currently before the Court is Plaintiff’s motion for appointment of counsel, filed April 16,

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2021. (ECF No. 68.) In his motion, Plaintiff states that he cannot afford counsel, his

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imprisonment will greatly limit his ability to litigate, and he has no legal training. In addition,

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due to COVID-19, inmates are only allowed access to the library once a week and sometimes not

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at all. Plaintiff argues that the issues involved in this case are complex and will require

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significant research and investigation, deposition testimony, and a trial in this case will involve

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conflicting testimony and counsel would better enable Plaintiff to present evidence and cross

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examine witnesses. Plaintiff has witnesses that have been transferred to different prisons or
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institutions that need to be interviewed and deposed. The case will be a credibility contest

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between the defendants and the Plaintiff. Plaintiff has been trying to locate an attorney to

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represent him but has had no success. Plaintiff specifically requests that the Court appoint

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Attorney Barth Daly to represent Plaintiff. (Id.)

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Defendants have not yet had an opportunity to file a response, but the Court finds a
response unnecessary. The motion is deemed submitted. Local Rule 230(l).

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As Plaintiff was previously informed, he does not have a constitutional right to appointed

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counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on

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other grounds, 154 F.3d 952, 954 n.1 (9th Cir. 1998), and the court cannot require an attorney to

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represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. U.S. Dist. Court for the S. Dist.

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of Iowa, 490 U.S. 296, 298 (1989). However, in certain 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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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, 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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The Court has considered Plaintiff’s request, but does not find the required exceptional

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circumstances. Even if it is assumed that Plaintiff is not well versed in the law and that he has

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made serious allegations which, if proved, would entitle him to relief, his case is not exceptional.

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This Court is faced with similar cases filed by prisoners who are proceeding pro se and with

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limited access to the law library almost daily. Many of these prisoners also have cases involving

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credibility issues. These litigants also must conduct discovery and litigate their cases without the

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assistance of counsel.

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Furthermore, at this stage in the proceedings, the Court cannot make a determination that

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Plaintiff is likely to succeed on the merits. Although some of Plaintiff’s claims survived

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Defendants’ summary judgment motion on the issue of exhaustion, this does not mean he will
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prevail on the merits of his claims. Based on a review of the record in this case, the Court does

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not find that Plaintiff cannot adequately articulate his claims.

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As to Plaintiff’s request that the Court appoint a specific attorney to represent him, the

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Court is unable to do so. Plaintiff is free to continue communicating with any potential attorneys

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to see if they are willing to represent him in this matter. Finally, the Court notes that if Plaintiff

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continues to experience limited or no access to the law library at his institution, he should seek

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appropriate extensions of time for any applicable deadlines.

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Accordingly, Plaintiff’s motion to appoint counsel, (ECF No. 68), is HEREBY DENIED,
without prejudice.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

April 19, 2021

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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