(PC) Rodriguez v. Cate et al

Filing 40

ORDER DENYING 38 Motion to Appoint Counsel signed by Magistrate Judge Sheila K. Oberto on 4/24/2023. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ERICK EDDIE RODRIGUEZ,

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Plaintiff,

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v.

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M. CATE, et al.,

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Case No.: 1:21-cv-00898-ADA-SKO (PC)
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(Doc. 38)

Defendants.

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Plaintiff Erick Eddie Rodriguez is a state prisoner proceeding pro se in this civil rights

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action pursuant to 42 U.S.C. § 1983.

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I.

INTRODUCTION

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On April 3, 2023, Plaintiff filed a Motion for Appointment of Counsel. (Doc. 38.) Plaintiff

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states (1) he is unable to afford counsel, (2) his imprisonment will greatly limit his ability to

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litigate this matter, (3) the issues involved are “very complex and will require significant research

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and investigation,” (4) his access to the law library is limited, (5) he has limited knowledge of the

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law, (6) a trial will involve conflicting testimony and counsel would “better enable” Plaintiff to

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present evidence and cross-examine witnesses, (7) the case involves a medical issue that may

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require expert testimony, and (8) the case will require “discovery of documents, and in-depth

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investigation.” (Id. at 2-3.)

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//

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II.

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Plaintiffs do not have a constitutional right to appointed counsel in § 1983 actions. Rand v.

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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on other grounds, 154 F.3d 952, 954

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n.1 (9th Cir. 1998). Nor can the Court require an attorney to represent a party under 28 U.S.C. §

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1915(e)(1). See Mallard v. U.S. Dist. Court, 490 U.S. 296, 304-05 (1989). However, in

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“exceptional circumstances,” the Court may request the voluntary assistance of counsel pursuant

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to section 1915(e)(1). Rand, 113 F.3d at 1525.

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DISCUSSION

Given that the Court has no reasonable method of securing and compensating counsel, the
Court will seek volunteer counsel only in extraordinary 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.” Rand, 113 F.3d at 1525 (internal quotation marks &

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citations omitted).

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The Court does not find the required exceptional circumstances in this case. Even

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assuming Plaintiff is not well versed in the law and has made serious allegations that, if proven,

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would entitle him to relief, Plaintiff’s case is not exceptional. The Court is faced with similar

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cases almost daily. While the Court recognizes that Plaintiff is at a disadvantage due to his pro se

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status and his incarceration, the test is not whether Plaintiff would benefit from the appointment

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of counsel. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). The test is whether

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exceptional circumstances exist; here, they do not. Indeed, circumstances common to most

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prisoners, such as lack of legal education and limited law library access, do not establish

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exceptional circumstances that would warrant a request for voluntary assistance of counsel. See,

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e.g., Faultry v. Saechao, 2020 WL 2561596, at *2 (E.D. Cal., May 20, 2020) (stating that

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“[c]ircumstances common to most prisoners, such as lack of legal education and limited law

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library access, do not establish exceptional circumstances supporting appointment of counsel”);

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see also Rand, 113 F.3d at 1525 (finding no abuse of discretion under 28 U.S.C. § 1915(e) when

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district court denied appointment of counsel despite fact that pro se prisoner “may well have fared

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better-particularly in the realm of discovery and the securing of expert testimony”).
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At this stage in the proceedings, the Court cannot determine whether Plaintiff is likely to

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succeed on the merits. While Plaintiff’s complaint has been screened as required by 28 U.S.C. §

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1915A(a) and the case proceeds on Plaintiff’s Eighth Amendment claims against the Defendants

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Cate and Biter (see Docs. 35 & 36), those claims have not yet been proven. The Court also does

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not find the case involves “very complex” issues despite Plaintiff’s assertion.

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Moreover, the fact an attorney may be better able to perform research, investigate, and

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represent Plaintiff does not change the analysis. There is little doubt most pro se litigants “find it

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difficult to articulate [their] claims,” and would be better served with the assistance of counsel.

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Wilborn, 789 F.2d at 1331. For this reason, in the absence of counsel, federal courts employ

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procedures which are highly protective of a pro se litigant's rights. See Haines v. Kerner, 404

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U.S. 519, 520 (1972) (holding pro se complaint to less stringent standard) (per curiam). In fact,

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where a plaintiff appears pro se in a civil rights case, the court must construe the pleadings

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liberally and afford the plaintiff any benefit of the doubt. Karim–Panahi v. Los Angeles Police

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Dep't, 839 F.2d 621, 623 (9th Cir. 1988). The rule of liberal construction is “particularly

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important in civil rights cases.” Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). Thus,

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where a pro se litigant can “articulate his claims” in light of the relative complexity of the matter,

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the “exceptional circumstances” which might require the appointment of counsel do not exist.

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Wilborn, 789 F.2d at 1331; accord Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009).

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Finally, the Court finds Plaintiff can articulate his claims. In its First Screening Order

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issued March 10, 2023, the Court determined Plaintiff plausibly alleged Eighth Amendment

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conditions of confinement claims. (Doc. 35.) On March 14, 2023, the Court order service of

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Plaintiff’s complaint under the Court’s e-service program (see Doc. 36) and service is presently

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underway. In sum, Plaintiff faces challenges and circumstances faced by most pro se prisoner

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litigants. Those circumstances, however, are not exceptional and do not warrant the appointment

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of counsel. Rand, 113 F.3d at 1525. The filing fee has also been paid (see Docket Entry dated

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3/29/23 [Receipt number #CAE100050269]) and Plaintiff is not proceeding in forma pauperis in

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this action. The Court is not aware of any authority that would allow the appointment of counsel

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for a litigant in a civil action who is not proceeding in forma pauperis.
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III.

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Accordingly, and for the reasons stated above, Plaintiff’s motion for the appointment of

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CONCLUSION AND ORDER

counsel (Doc. 38) is DENIED without prejudice.

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IT IS SO ORDERED.
Dated:

/s/ Sheila K. Oberto

April 24, 2023

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UNITED STATES MAGISTRATE JUDGE

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