Ayobi v. Adams et al

Filing 41

ORDER DENYING 40 Plaintiff's Third Motion to Appoint Counsel, Without Prejudice signed by Magistrate Judge Stanley A. Boone on 1/31/2019. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SHAJIA AYOBI,

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Plaintiff,
v.
BARBARA SHOWALTER,

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Defendant.

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Case No.: 1:17-cv-00693-DAD-SAB (PC)
ORDER DENYING PLAINTIFF’S THIRD
REQUEST FOR APPOINTMENT OF COUNSEL,
WITHOUT PREJUDICE
[ECF No. 40]

Plaintiff Shajia Ayobi 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 third request for appointment of counsel, filed January
30, 2019.

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As Plaintiff is aware, she does not have a constitutional right to appointed counsel in this

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

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

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

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circumstances the Court may request the voluntary assistance of counsel pursuant to section

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1915(e)(1). Rand, 113 F.3d at 1525. Without a reasonable method of securing and compensating

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counsel, the Court will seek volunteer counsel only in the most serious and exceptional cases. In

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determining whether “exceptional circumstances exist, the district court must evaluate both the
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likelihood of success on the merits [and] the ability of the [plaintiff] to articulate [her] claims pro se in

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

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omitted). The test for exceptional circumstances requires the court to evaluate a plaintiff’s likelihood

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of success on the merits and the ability of the plaintiff to articulate his or her claims pro se in light of

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the 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.

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In this case, the Court does not find the exceptional circumstances necessary to request

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volunteer counsel at this time. The Court does not find the legal issues here to be particularly

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complex. The record reflects that Plaintiff has adequately articulated her claim, and as a result the

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undersigned has recommended that this case proceed on Plaintiff’s claim for monetary damages for

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deliberate indifference to a serious medical need. While a pro se litigant may be better served with the

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assistance of counsel, so long as a pro se litigant, such as Plaintiff in this instance, is able to “articulate

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[her] claims against the relative complexity of the matter,” the “exceptional circumstances” which

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might require the appointment of counsel do not exist. Rand v. Rowland, 113 F.3d at 1525 (finding no

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abuse of discretion under 28 U.S.C. § 1915(e) when district court denied appointment of counsel

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despite fact that pro se prisoner “may well have fared better-particularly in the realm of discovery and

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the securing of expert testimony.”)

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circumstance from the previous two requests, and Plaintiff’s third motion for appointment of counsel

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is denied, without prejudice.

Further, there has not been a substantial change in the

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IT IS SO ORDERED.

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Dated:

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January 31, 2019
UNITED STATES MAGISTRATE JUDGE

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