Dillingham v. Emerson

Filing 36

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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 JERRY DILLINGHAM, 11 12 13 14 Plaintiff, v. N. EMERSON, et al., Defendants. 15 16 17 18 ) ) ) ) ) ) ) ) ) ) ) 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. 19 Currently before the Court is Plaintiff’s renewed motion for appointment of counsel, filed 20 September 21, 2018. (ECF No. 35.) In support, Plaintiff declares that he has significant mental 21 impairments. Therefore, he is unable to prosecute this action without assistance. The Court previously 22 found that Plaintiff has stated a cognizable Eighth Amendment claim based on hazardous cell conditions 23 caused by water leakage, and findings and recommendations are currently pending. 24 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 25 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require any attorney to represent 26 plaintiff pursuant to 28 U.S.C. § 1915(e)(1), Mallard v. United States District Court for the Southern 27 District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the Court 28 may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. 1 1 Without a reasonable method of securing and compensating counsel, the court will seek volunteer 2 counsel only in the most serious and exceptional cases. 3 circumstances exist, the district court must evaluate both the likelihood of success on the merits [and] 4 the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the legal issues 5 involved.” Id. (internal quotation marks and citations omitted). In determining whether “exceptional 6 In the present case, the Court does not find the required exceptional circumstances. Even if it 7 assumed that Plaintiff is not well versed in the law and that he has made serious allegations which, if 8 proved, would entitle him to relief, his case is not exceptional. Circumstances common to most 9 prisoners, such as lack of legal education and limited law library access, do not alone establish 10 exceptional circumstances that would warrant a request for voluntary assistance of counsel. 11 Further, at this early stage in the proceedings, the Court cannot yet determine that Plaintiff is 12 likely to succeed on the merits. Nevertheless, the record shows that Plaintiff has adequately articulated 13 his claim under the circumstances. Plaintiff’s declaration asserts that he was only able to prosecute this 14 case thus far with assistance, and he argues that the Court should not consider this assistance in 15 evaluating Plaintiff’s ability to pursue this action as a pro se litigant. On the contrary, the Court may 16 consider the totality of the circumstances, including the availability of assistance for Plaintiff. See Jones 17 v. McEwen, No. 12-CV-1777-LAB-BGS, 2013 WL 5330480, at *3 (S.D. Cal. Sept. 18, 2013) 18 (availability of assistance mitigated a pro se litigant’s mental limitations); see also Stancle v. Clay, 692 19 F.3d 948, 959 (9th Cir. 2012) (same). For the foregoing reasons, Plaintiff’s renewed motion for the appointment of counsel is 20 21 HEREBY DENIED, without prejudice. 22 23 IT IS SO ORDERED. 24 Dated: 25 September 25, 2018 UNITED STATES MAGISTRATE JUDGE 26 27 28 2

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