(PC) Kahlilullah Razaq v. California Department of Corrections et al

Filing 10

ORDER DENYING #9 Motion to Appoint Counsel signed by Magistrate Judge Barbara A. McAuliffe on 9/15/2020. First Amended Complaint or Notice of Voluntary Dismissal due by 10/16/2020. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KAHLILULLAH RAZAQ,

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Plaintiff,

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ORDER DENYING MOTION TO APPOINT
COUNSEL

v.
(ECF No. 9)
CALIFORNIA DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.

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Plaintiff Kahlilullah Razaq (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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Case No. 1:20-cv-01116-BAM (PC)

pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
Currently before the Court is Plaintiff’s renewed motion to appoint counsel, filed

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September 10, 2020. (ECF No. 9.) In his motion, Plaintiff again states that he does not know

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how to read or write in English and he needs an attorney to help him prepare his lawsuit. Plaintiff

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also references the Court’s August 28, 2020 screening order, which directed him to identify the

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Doe defendants in his amended complaint, stating that a Sergeant Timboler or Timbler did

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Plaintiff’s interview and knows all the officers who worked that day on A yard. Plaintiff requests

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that someone request this information from Sergeant Timbler, because he does not know how to

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complete his complaint and motion himself. Plaintiff also states that he is being transferred from

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Tehachapi Prison to Calapay or Calapack Prison1 on September 8, 2020, and he will provide the

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Court with his updated address once he has been transferred. (Id.)

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As Plaintiff has been informed, 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), rev’d in part on

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other grounds, 154 F.3d 952, 954 n.1 (9th Cir. 1998), and the court cannot require an attorney to

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represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. U.S. Dist. Court for the S. Dist.

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of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the court may

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request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at

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1525.

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Without a reasonable method of securing and compensating counsel, the Court will seek

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volunteer counsel only in the most serious and exceptional cases. In determining whether

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“exceptional circumstances exist, a district court must evaluate both the likelihood of success on

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the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the

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complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted).

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The Court has considered Plaintiff’s request, but does not find the required exceptional

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circumstances. Even if it is assumed that Plaintiff is not well versed in the law and that he has

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made serious allegations which, if proved, would entitle him to relief, his case is not exceptional.

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This Court is faced with similar cases filed by prisoners who are proceeding pro se and in forma

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pauperis almost daily. Many of these prisoners also have limited education and a limited ability

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to read and write in English. These litigants also must conduct legal research and litigate their

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cases without the assistance of counsel.

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Furthermore, at this stage in the proceedings, the Court cannot make a determination that

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Plaintiff is likely to succeed on the merits. Plaintiff’s original complaint was screened and the

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Court found that it failed to state a cognizable claim. Plaintiff has not yet filed an amended

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complaint attempting to cure the deficiencies identified by the Court’s screening order, and

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therefore the Court cannot evaluate the likelihood of success on the merits. Finally, based on a

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It appears Plaintiff will be transferred to Calipatria State Prison.
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review of the record in this case, the Court does not find that Plaintiff cannot adequately articulate

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his claims.

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Accordingly, Plaintiff’s motion to appoint counsel, (ECF No. 9), is HEREBY DENIED,

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without prejudice. As discussed in the Court’s August 28, 2020 screening order, Plaintiff’s first

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amended complaint or notice of voluntary dismissal is currently due on or before September 30,

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2020. In light of the representation that Plaintiff is being moved, the Court will grant a short

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continuance. Plaintiff’s first amended complaint or notice of voluntary dismissal is due on

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or before October 16, 2020.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

September 15, 2020

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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