Dillingham v. Emerson
Filing
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ORDER DENYING Plaintiff's Renewed Motion for Appointment of Counsel, Without Prejudice 35 , signed by Magistrate Judge Stanley A. Boone on 9/25/2018. (Hellings, J)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JERRY DILLINGHAM,
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Plaintiff,
v.
N. EMERSON, et al.,
Defendants.
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Case No. 1:18-cv-00507-AWI-SAB (PC)
ORDER DENYING PLAINTIFF’S RENEWED
MOTION FOR APPOINTMENT OF COUNSEL,
WITHOUT PREJUDICE
[ECF No. 35]
Plaintiff Jerry Dillingham is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.
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Currently before the Court is Plaintiff’s renewed motion for appointment of counsel, filed
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September 21, 2018. (ECF No. 35.) In support, Plaintiff declares that he has significant mental
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impairments. Therefore, he is unable to prosecute this action without assistance. The Court previously
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found that Plaintiff has stated a cognizable Eighth Amendment claim based on hazardous cell conditions
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caused by water leakage, and findings and recommendations are currently pending.
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Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v.
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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require any attorney to represent
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plaintiff pursuant to 28 U.S.C. § 1915(e)(1), Mallard v. United States District Court for the Southern
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District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the Court
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may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525.
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Without a reasonable method of securing and compensating counsel, the court will seek volunteer
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counsel only in the most serious and exceptional cases.
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circumstances exist, the district court must evaluate both the likelihood of success on the merits [and]
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the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the legal issues
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involved.” Id. (internal quotation marks and citations omitted).
In determining whether “exceptional
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In the present case, the Court does not find the required exceptional circumstances. Even if it
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assumed that Plaintiff is not well versed in the law and that he has made serious allegations which, if
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proved, would entitle him to relief, his case is not exceptional. Circumstances common to most
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prisoners, such as lack of legal education and limited law library access, do not alone establish
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exceptional circumstances that would warrant a request for voluntary assistance of counsel.
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Further, at this early stage in the proceedings, the Court cannot yet determine that Plaintiff is
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likely to succeed on the merits. Nevertheless, the record shows that Plaintiff has adequately articulated
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his claim under the circumstances. Plaintiff’s declaration asserts that he was only able to prosecute this
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case thus far with assistance, and he argues that the Court should not consider this assistance in
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evaluating Plaintiff’s ability to pursue this action as a pro se litigant. On the contrary, the Court may
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consider the totality of the circumstances, including the availability of assistance for Plaintiff. See Jones
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v. McEwen, No. 12-CV-1777-LAB-BGS, 2013 WL 5330480, at *3 (S.D. Cal. Sept. 18, 2013)
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(availability of assistance mitigated a pro se litigant’s mental limitations); see also Stancle v. Clay, 692
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F.3d 948, 959 (9th Cir. 2012) (same).
For the foregoing reasons, Plaintiff’s renewed motion for the appointment of counsel is
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HEREBY DENIED, without prejudice.
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IT IS SO ORDERED.
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Dated:
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September 25, 2018
UNITED STATES MAGISTRATE JUDGE
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