(PC) Holguin v. Bell et al

Filing 42

ORDER DENYING 41 Motion to Appoint Counsel signed by Magistrate Judge Helena M. Barch-Kuchta on 12/3/2021. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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FELIPE ROAMN HOLGUIN,

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Plaintiff,

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v.

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BELL, DIAZ, and RAMOS,

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No. 1:19-cv-000757-HBK (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR APPOINTMENT OF COUNSEL
(Doc. No. 41)

Defendants.

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Pending before the Court is Plaintiff’s motion to appoint counsel filed December 2, 2021.

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(Doc. No. 41). Plaintiff is a prisoner proceeding pro se and in forma pauperis on his civil rights

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complaint filed under 42 U.S.C § 1983 complaint. (Doc Nos. 1, 10). The complaint alleges a

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conditions-of-confinement claim for a week-long stay in a cell covered in feces and sewer water,

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without a working toilet.1 (See generally Doc. No. 12). Plaintiff seeks appointment of counsel on

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the basis that he is indigent; his imprisonment impedes his ability to litigate this case; a trial

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would involve conflicting testimony and counsel would be better at introducing evidence and

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cross-examining witnesses; and his attempts to retain counsel thus far have failed. (Doc. No. 41

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at 1). Plaintiff also identifies the name of counsel he would like appointed. (Id.).

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Defendants’ exhaustion-based motion for summary judgment is pending and ripe for review. See (Doc. Nos. 29,
32, 33, 34, 35).

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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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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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Here, Plaintiff has not met his “burden of demonstrating exceptional circumstances.”

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Jones v. Chen, 2014 WL 12684497, at *1 (E.D. Cal. Jan. 14, 2014). At the outset, the Court

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cannot compel an attorney to accept a case in a pro bono basis. The issues Plaintiff presents to

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justify appointment of counsel are similar obstacles all prisoner plaintiffs pursuing § 1983 claims

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face. 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). While the assistance of counsel

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during trial may be helpful, the “relevant consideration is not one of convenience” but rather

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exceptionalness. Howard v. Hedgpeth, 2010 WL 1641087, at *2 (E.D. Cal. Apr. 20, 2010). Nor

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is plaintiff’s inability to find counsel is not “a proper factor for the Court to consider in

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determining whether to request counsel.” (Id). Further, the Court does not find the issues are “so

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complex that due process violations will occur absent the presence of counsel.” Bonin v.

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Vasquez, 999 F.2d 425, 428-29 (9th Cir. 1993). Plaintiff has not showed exceptional

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circumstances warrant appointment of counsel at this stage of the proceedings. As noted,
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Defendants’ exhaustion-based motion for summary judgment remains pending and ripe. If this

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case progresses past summary judgment stage and plaintiff’s circumstances change so that he is

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able to demonstrate exceptional circumstances, he may renew his motion for appointment at

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counsel at that time.

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Accordingly, it is ORDERED:

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Plaintiff’s motion to appoint counsel (Doc. No. 41) is DENIED.

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Dated:

December 3, 2021
HELENA M. BARCH-KUCHTA
UNITED STATES MAGISTRATE JUDGE

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