(PC) Martinez v. Lewis et al

Filing 21

ORDER DENYING 20 Motion to Appoint Counsel signed by Magistrate Judge Stanley A. Boone on 10/7/2019. (Lundstrom, T)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RICARDO MARTINEZ, 12 Plaintiff, 13 v. 14 J. LEWIS, et al., 15 Defendants. 16 17 18 19 Case No.: 1:19-cv-00812-SAB (PC) ORDER DENYING PLAINTIFF’S THIRD MOTION FOR APPOINTMENT OF COUNSEL, WITHOUT PREJUDICE [ECF No. 20] Plaintiff Ricardo Martinez is appearing 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 third motion for appointment of counsel, filed 20 21 ) ) ) ) ) ) ) ) ) ) ) ) September 30, 2019. 22 As Plaintiff was previously advised, Plaintiff does not have a constitutional right to appointed 23 counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot 24 require any attorney to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States 25 District Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in certain 26 exceptional circumstances the court may request the voluntary assistance of counsel pursuant to 27 section 1915(e)(1). Rand, 113 F.3d at 1525. 28 /// 1 Without a reasonable method of securing and compensating counsel, the Xourt will seek 1 2 volunteer counsel only in the most serious and exceptional cases. In determining whether 3 “exceptional circumstances exist, the district court must evaluate both the likelihood of success on the 4 merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the 5 legal issues involved.” Id. (internal quotation marks and citations omitted). 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. The Court is faced with similar cases 9 almost daily. While the Court recognizes that Plaintiff is at a disadvantage due to his pro se status and 10 his incarceration, the test is not whether Plaintiff would benefit from the appointment of counsel. See 11 Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (“Most actions require development of 12 further facts during litigation and a pro se litigant will seldom be in a position to investigate easily the 13 facts necessary to support the case.”) The test is whether exception circumstances exist and here, they 14 do not. Circumstances common to most prisoners, such as lack of legal education and limited law 15 library access, do not establish exceptional circumstances that would warrant a request for voluntary 16 assistance of counsel. In the present case, the Court does not find the required exceptional 17 circumstances. Accordingly, Plaintiff’s third motion for the appointment of counsel is denied, without 18 prejudice. 19 20 IT IS SO ORDERED. 21 Dated: 22 October 7, 2019 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 2

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