(PC) Shanks v. Mendez et al

Filing 32

ORDER DENYING 31 Plaintiff's Second Motion to Appoint Counsel, Without Prejudice signed by Magistrate Judge Stanley A. Boone on 2/18/2021. (Jessen, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DARREN SHANKS, 12 Plaintiff, 13 14 v. E. MENDEZ, et al., 15 Defendants. 16 17 18 19 Case No.: 1:20-cv-01083-SAB (PC) ORDER DENYING PLAINTIFF’S SECOND MOTION FOR APPOINTMENT OF COUNSEL, WITHOUT PREJUDICE (ECF No. 31) Plaintiff Darren Shanks is 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 second motion for appointment of counsel, filed 20 21 ) ) ) ) ) ) ) ) ) ) ) ) February 17, 2021. 22 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 23 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require any attorney to represent 24 plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern 25 District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the court 26 may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 27 1525. 28 1 Without a reasonable method of securing and compensating counsel, the court 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). The test for exceptional circumstances requires the Court to evaluate the Plaintiff’s likelihood 6 7 of success on the merits and the ability of the Plaintiff to articulate his claims pro se in light of the 8 complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 9 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances common to most 10 prisoners, such as lack of legal education and limited law library access, do not establish exceptional 11 circumstances that would warrant a request for voluntary assistance of counsel. In the present case, on 12 September 9, 2020, the Court screened Plaintiff’s complaint, found he stated a cognizable retaliation 13 claim, and Defendants have filed an answer to the complaint. Thus, the Court finds that Plaintiff is 14 capable of litigating this action even if it is with the assistance of another inmate. While the Court 15 recognizes that Plaintiff is at a disadvantage due to his pro se status and his incarceration, the test is 16 not whether Plaintiff would benefit from the appointment of counsel. See Wilborn v. Escalderon, 789 17 F.2d at 1331 (“Most actions require development of further facts during litigation and a pro se litigant 18 will seldom be in a position to investigate easily the facts necessary to support the case.”) The test is 19 whether exception circumstances exist and here, they do not. Accordingly, Plaintiff’s second motion 20 for appointment of counsel is be DENIED, without prejudice. 21 22 IT IS SO ORDERED. 23 Dated: 24 February 18, 2021 UNITED STATES MAGISTRATE JUDGE 25 26 27 28 2

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