Gallardo v. Sherman et al

Filing 34

ORDER Denying, without Prejudice, Plaintiff's Second 32 Motion to Appoint Counsel signed by Magistrate Judge Stanley A. Boone on 12/14/2017. (Flores, E)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANGEL LUIS GALLARDO, 12 13 14 15 Plaintiff, v. STU SHERMAN, et al., Defendants. 16 17 18 19 20 ) ) ) ) ) ) ) ) ) ) Case No. 1:17-cv-00390-SAB (PC) ORDER DENYING, WITHOUT PREJUDICE, PLAINTIFF’S SECOND MOTION FOR APPOINTMENT OF COUNSEL [ECF No. 32] Plaintiff Angel Luis Gallardo is appearing 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 second motion for the appointment of counsel, filed December 7, 2017. Defendant Garcia filed an opposition on December 12, 2017. 21 Plaintiff asserts that he is unable to afford counsel, that imprisonment limits his ability to 22 litigate due to ad-seg placement and frequent lockdowns, and that the issues of his case are complex 23 and better presented by counsel. 24 As Plaintiff has been previously informed, he does not have a constitutional right to appointed 25 counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot 26 require any attorney to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States 27 District Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in certain 28 1 1 exceptional circumstances the court may request the voluntary assistance of counsel pursuant to 2 section 1915(e)(1). Rand, 113 F.3d at 1525. Without a reasonable method of securing and compensating counsel, the court will seek 3 4 volunteer counsel only in the most serious and exceptional cases. In determining whether 5 “exceptional circumstances exist, the district court must evaluate both the likelihood of success on the 6 merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the 7 legal issues involved.” Id. (internal quotation marks and citations omitted). 8 The test for exceptional circumstances requires the Court to evaluate the Plaintiff’s likelihood 9 of success on the merits and the ability of the Plaintiff to articulate his claims pro se in light of the 10 complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 11 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances common to most 12 prisoners, such as lack of legal education and limited law library access, do not establish exceptional 13 circumstances that would warrant a request for voluntary assistance of counsel. In the present case, 14 the Court does not find the required exceptional circumstances. 15 To the extent Plaintiff is unable to comply with a deadline due to limited access to his legal 16 property, to a law library, or due to a lockdown, Plaintiff may seek a reasonable extension of time. To 17 do so, Plaintiff may file a motion supported by good cause prior to the expiration of such a deadline. 18 As noted above, these issues are not sufficient alone to constitute exceptional circumstances 19 warranting a search for voluntary counsel to appoint in this case. Accordingly, Plaintiff’s second motion for appointment of counsel is HEREBY DENIED, 20 21 without prejudice. 22 23 IT IS SO ORDERED. 24 Dated: 25 December 14, 2017 UNITED STATES MAGISTRATE JUDGE 26 27 28 2

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