Shepard v. Borum et al

Filing 83

ORDER DENYING Plaintiff's 82 Motion to Appoint Counsel, signed by Magistrate Judge Helena M. Barch-Kuchta on 8/2/2021. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LAMONT SHEPARD,

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Plaintiff,

Case No. 1:18-cv-00277-DAD-HBK
ORDER DENYING PLAINTIFFS MOTION
TO APPOINT COUNSEL

v.
(Doc. No. 82)
M. BORUM, J. ACEBEDO,
Defendant.

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Plaintiff Lamont Shepard, a state prisoner proceeding pro se, initiated this action by filing

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a civil rights complaint under 42 U.S.C. § 1983 on February 26, 2018. (Doc. No. 1). Pending

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before the Court is Plaintiff’s motion to appoint counsel filed July 30, 2021. (Doc. No. 82).

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The United States Constitution does not require appointment of counsel in civil cases. See

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Lewis v. Casey, 518 U.S. 343, 354 (1996) (explaining Bounds v. Smith, 430 U.S. at 817, did not

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create a right to appointment of counsel in civil cases). Under 28 U.S.C. § 1915, this Court has

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discretionary authority to appoint counsel for an indigent to commence, prosecute, or defend a

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civil action. See 28 U.S.C. § 1915(e)(1) (stating the court has authority to appoint counsel for

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people unable to afford counsel); see also United States v. McQuade, 519 F.2d 1180 (9th Cir.

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1978) (addressing relevant standard of review for motions to appoint counsel in civil cases) (other

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citations omitted). However, motions to appoint counsel in civil cases are granted only in

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“exceptional circumstances.” Id. at 1181. The court may consider many factors to determine if

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exceptional circumstances warrant appointment of counsel including, but not limited to, proof of

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indigence, the likelihood of success on the merits, and the ability of the plaintiff to articulate his

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or her claims pro se in light of the complexity of the legal issues involved. Id.; see also Rand v.

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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds on reh’g en

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banc, 154 F.2d 952 (9th Cir. 1998).

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Plaintiff states that he requires appointment of counsel for the following reasons: it is

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unfair that Defendants have counsel and Plaintiff does not, Plaintiff is indigent, Plaintiff lacks

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legal expertise, Plaintiff has limited access to the law library, and the issues in this case are

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complex, necessitating the presentation of evidence and cross examination of witnesses at trial.

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(Doc. No. 82 at 1). Plaintiff has not met his “burden of demonstrating exceptional

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circumstances.” Jones v. Chen, 2014 WL 12684497, at *1 (E.D. Cal. Jan. 14, 2014).
Plaintiff’s indigence does not qualify “as an exceptional circumstance in a prisoner civil

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rights case.” Montano v. Solomon, 2010 WL 2403389, at *2 (E.D. Cal. June 11, 2010); Callender

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v. Ramm, 2018 WL 6448536, at *3 (E.D. Cal. Dec. 10, 2018). Despite Plaintiff’s pro se and

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incarcerated status, he faces the same obstacles all pro se prisoners face, such as limited access to

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the law library and limited legal knowledge. Challenges preparing for trial “are ordinary for

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prisoners pursuing civil rights claim” and cannot form the basis for appointment of counsel.

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Courtney v. Kandel, 2020 WL 1432991, at *1 (E.D. Cal. Mar. 24, 2020). Contrary to Plaintiff’s

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assertion, the Court does not find the issues are “so complex that due process violations will occur

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absent the presence of counsel.” Bonin v. Vasquez, 999 F.2d 425, 428–29 (9th Cir. 1993). From

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the pleadings filed in this case, Plaintiff has demonstrated an ability to prosecute this case pro se.

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Accordingly, it is ORDERED:

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Plaintiff’s motion to appoint counsel (Doc. No. 82) is DENIED.

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Dated:

August 2, 2021
HELENA M. BARCH-KUCHTA
UNITED STATES MAGISTRATE JUDGE

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