Thompson v. Gomez et al

Filing 123

ORDER DENYING 122 Plaintiff's Fifth Motion for Appointment of Counsel, Without Prejudice, signed by Magistrate Judge Stanley A. Boone on 9/2/2022. (Rivera, O)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARK SHANE THOMPSON,

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ORDER DENYING PLAINTIFF’S FIFTH
MOTION FOR APPOINTMENT OF
COUNSEL, WITHOUT PREJUDICE

Plaintiff,

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Case No. 1:18-cv-00125-SAB (PC)

v.
A. GOMEZ, et al.,

(ECF No. 122)

Defendants.

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Plaintiff Mark Shane Thompson is proceeding pro se and in forma pauperis in this civil

17 rights action filed pursuant to 42 U.S.C. § 1983.
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Currently before the Court is Plaintiff’s fifth motion for appointment of counsel, filed

19 September 1, 2022.
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As Plaintiff is well aware, he does not have a constitutional right to appointed counsel in

21 this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require
22 any attorney to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States
23 District Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in certain
24 exceptional circumstances the court may request the voluntary assistance of counsel pursuant to
25 section 1915(e)(1). Rand, 113 F.3d at 1525. Without a reasonable method of securing and
26 compensating counsel, the court will seek volunteer counsel only in the most serious and
27 exceptional cases. In determining whether “exceptional circumstances exist, the district court
28 must evaluate both the likelihood of success on the merits [and] the ability of the [plaintiff] to

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1 articulate his claims pro se in light of the complexity of the legal issues involved.” Id. (internal
2 quotation marks and citations omitted).
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In the present case, the Court does not find the required exceptional circumstances.

4 Plaintiff is proceeding on a claim of excessive force and the legal issues present in this action are
5 not complex, and Plaintiff has thoroughly set forth his allegations in the complaint. Even if it
6 assumed that Plaintiff is not well versed in the law and that he has made serious allegations
7 which, if proved, would entitle him to relief, his case is not exceptional. The Court is faced with
8 similar cases almost daily. While the Court recognizes that Plaintiff is at a disadvantage due to
9 his pro se status and his incarceration, the test is not whether Plaintiff would benefit from the
10 appointment of counsel. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (“Most
11 actions require development of further facts during litigation and a pro se litigant will seldom be
12 in a position to investigate easily the facts necessary to support the case.”) The test is whether
13 exception circumstances exist and here, they do not. While a pro se litigant may be better served
14 with the assistance of counsel, so long as a pro se litigant, such as Plaintiff in this instance, is
15 able to “articulate his claims against the relative complexity of the matter,” the “exceptional
16 circumstances” which might require the appointment of counsel do not exist. Rand v. Rowland,
17 113 F.3d at 1525 (finding no abuse of discretion under 28 U.S.C. § 1915(e) when district court
18 denied appointment of counsel despite fact that pro se prisoner “may well have fared better19 particularly in the realm of discovery and the securing of expert testimony.”) Although this case
20 is currently set for jury trial, that fact, alone, does not entitle Plaintiff to appointment of counsel.
21 In addition, Plaintiff fails to substantiate his claim that his mental health is interfering with his
22 ability to litigate this action given the length of time this case has been pending. Accordingly,
23 Plaintiff’s fifth motion for the appointment of counsel shall be denied, without prejudice.
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Based on the foregoing, it is HEREBY ORDERED that Plaintiff’s fifth motion for

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2 appointment of counsel is denied, without prejudice.
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IT IS SO ORDERED.

5 Dated:

September 2, 2022
UNITED STATES MAGISTRATE JUDGE

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