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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ANGEL LUIS GALLARDO,

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Plaintiff,
v.
STU SHERMAN, et al.,
Defendants.

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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.

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Plaintiff asserts that he is unable to afford counsel, that imprisonment limits his ability to

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litigate due to ad-seg placement and frequent lockdowns, and that the issues of his case are complex

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and better presented by counsel.

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As Plaintiff has been 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), and the court cannot

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require any attorney to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States

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District Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in certain

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exceptional circumstances the court may request the voluntary assistance of counsel pursuant to

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section 1915(e)(1). Rand, 113 F.3d at 1525.
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 the

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

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

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The test for exceptional circumstances requires the Court to evaluate the Plaintiff’s likelihood

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of success on 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. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir.

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1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances common to most

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prisoners, such as lack of legal education and limited law library access, do not establish exceptional

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circumstances that would warrant a request for voluntary assistance of counsel. In the present case,

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the Court does not find the required exceptional circumstances.

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To the extent Plaintiff is unable to comply with a deadline due to limited access to his legal

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property, to a law library, or due to a lockdown, Plaintiff may seek a reasonable extension of time. To

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do so, Plaintiff may file a motion supported by good cause prior to the expiration of such a deadline.

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As noted above, these issues are not sufficient alone to constitute exceptional circumstances

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warranting a search for voluntary counsel to appoint in this case.
Accordingly, Plaintiff’s second motion for appointment of counsel is HEREBY DENIED,

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without prejudice.

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IT IS SO ORDERED.

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Dated:

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December 14, 2017
UNITED STATES MAGISTRATE JUDGE

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