Dillingham v. Emerson

Filing 85

ORDER DENYING Plaintiff's Fifth 83 Motion to Appoint Counsel without prejudice, signed by Magistrate Judge Stanley A. Boone on 8/26/2020. (Martin-Gill, S)

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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,
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v.

Case No. 1:18-cv-00507-AWI-SAB (PC)
ORDER DENYING PLAINTIFF’S FIFTH
MOTION FOR APPOINTMENT OF
COUNSEL, WITHOUT PREJUDICE

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N. EMERSON, et al.,

(ECF No. 83)

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Defendants.
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Plaintiff Jerry Dillingham is a state prisoner proceeding 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 fifth motion for appointment of counsel, filed
August 21, 2020.

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As Plaintiff was previously advised, he does not have a constitutional right to appointed

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

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require any attorney to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1), Mallard v. United

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

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certain exceptional circumstances the Court may request the voluntary assistance of counsel

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

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and compensating counsel, the court will seek volunteer counsel only in the most serious and

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exceptional cases. In determining whether “exceptional circumstances exist, the district court must
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evaluate both the likelihood of success on the merits [and] the ability of the [plaintiff] to articulate

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his claims pro se in light of the complexity of the legal issues involved.” Id. (internal quotation

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marks and citations omitted).

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In the present case, the Court does not find the required exceptional circumstances. As with

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Plaintiff’s prior motions for appointment of counsel, he contends that he is unable to litigate this

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action because he is illiterate, has mental disabilities, requires the assistance of another inmate to

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draft his documents, and is in the disability placement program. Plaintiff seeks appointment of

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counsel to assist him at the settlement conference which took place yesterday, August 25, 2020.

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However, the Court does not find the required exceptional circumstances. Even if it is assumed

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that Plaintiff is not well versed in the law and that he has made serious allegations which, if proved,

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would entitle him to relief, his case is not exceptional. Circumstances common to most prisoners,

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such as a lack of education or limited law library access, do not alone establish exceptional

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circumstances that would warrant a request for voluntary assistance of counsel. The legal issues

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present in this action are not complex. Further, Defendants just filed an answer in this case, and at

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this early stage of the proceedings, the Court cannot find that Plaintiff is likely to succeed on the

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merits. Further, there is no indication from the record that Plaintiff has been unable to adequately

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articulate claims and prosecute this action—whether alone or with inmate assistance. In addition,

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Plaintiff has failed to demonstrate that he could not meaningfully participate in the settlement

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conference without the assistance of counsel.

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appointment of counsel shall be denied, without prejudice.

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IT IS SO ORDERED.

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Dated:

Accordingly, Plaintiff’s fifth motion for the

August 26, 2020
UNITED STATES MAGISTRATE JUDGE

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