(PC) Roberson v. Farmbrough et al

Filing 49

ORDER DENYING Plaintiff's 48 Motion to Appoint Counsel without Prejudice signed by Magistrate Judge Stanley A. Boone on 11/21/2022. (Flores, E)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 MORRIS ROBINSON, 11 Plaintiff, 12 Case No. 1:21-cv-00990-ADA-SAB (PC) ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL, WITHOUT PREJUDICE v. 13 J. FARMBROUGH, et al., 14 Defendants. (ECF No. 48) 15 16 Plaintiff Morris Robinson, is proceeding pro se and in forma pauperis in this civil rights 17 action filed pursuant to 42 U.S.C. § 1983. 18 Currently before the Court is Plaintiff’s motion for appointment of counsel, filed 19 November 18, 2022. Plaintiff seeks counsel because: (1) he is indigent and cannot afford a 20 lawyer; (2) his case is complex; (3) expert testimony will be required; (4) discovery will be 21 required; (5) his imprisonment limits his ability to investigate and locate witnesses; and (6) he 22 has demanded a jury trial. 23 There is no constitutional right to appointed counsel in this action, Rand v. Rowland, 113 24 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require any attorney to represent plaintiff 25 pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern 26 District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the 27 Court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 28 F.3d at 1525. 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 4 on the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 5 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). In the present case, the Court does not find the required exceptional circumstances. Even 6 7 if it assumed that Plaintiff is not well versed in the law and that he has made serious allegations 8 which, if proved, would entitle him to relief, his case is not exceptional. The Court is faced with 9 similar cases almost daily. While the Court recognizes that Plaintiff is at a disadvantage due to 10 his pro se status and his incarceration, the test is not whether Plaintiff would benefit from the 11 appointment of counsel. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (“Most 12 actions require development of further facts during litigation and a pro se litigant will seldom be 13 in a position to investigate easily the facts necessary to support the case.”) The test is whether 14 exception circumstances exist and here, they do not. At this stage of the litigation, the Court 15 cannot find Plaintiff is likely to succeed on the merits. In addition, circumstances common to 16 most prisoners, such as lack of legal education and limited law library access, do not establish 17 exceptional circumstances that would warrant a request for voluntary assistance of counsel. 18 Accordingly, Plaintiff’s motion for the appointment of counsel is denied, without prejudice. 19 20 IT IS SO ORDERED. 21 Dated: November 21, 2022 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 2

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