Barker v. Washburn et al

Filing 10

ORDER DENYING MOTION TO APPOINT COUNSEL signed by Magistrate Judge Stanley A. Boone on 11/19/2021. IT IS HEREBY ORDERED that Plaintiff's motion to appoint counsel (ECF No. 8 ) is DENIED. (Gonzales, V)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Case No. 1:21-cv-01169-NONE-SAB

ANTHONY BARKER,

ORDER DENYING MOTION TO APPOINT
COUNSEL

Plaintiff,
v.

(ECF No. 8)

WASHBURN, et al.,
Defendants.

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Anthony Barker (“Plaintiff”), a detainee at the Kings County Jail proceeding pro se and in

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forma pauperis in this matter, initiated this civil rights action on August 2, 2021. (ECF No. 1.) On

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September 7, 2021, Plaintiff filed a motion to appoint counsel. (ECF No. 8.) For the reasons stated

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herein, Plaintiff’s motion shall be denied.

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I.

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LEGAL STANDARD

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Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v.

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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), overruled on other grounds, 154 F.3d 952 (1998),

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and district courts lack authority to require counsel to represent indigent prisoners in § 1983
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pursuant to 28 U.S.C. § 1915(e)(1), Mallard v. United States District Court, 490 U.S. 296, 298,

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301–03 (1989). Nevertheless, in certain exceptional circumstances, the court may request the

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voluntary assistance of counsel pursuant to § 1915(e)(1). See 28 U.S.C. § 1915(e)(1); Rand, 113

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F.3d at 1525; Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900

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F.2d 1332, 1335 (9th Cir. 1990).

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When determining whether “exceptional circumstances” exist, the Court must consider

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Plaintiff’s likelihood of success on the merits as well as the ability of Plaintiff to articulate his

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claims pro se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d

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965, 970 (9th Cir. 2009). “Neither of these considerations is dispositive and instead must be viewed

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together.” Id. (district court did not abuse discretion in declining to appoint counsel where plaintiff

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“was well-organized, made clear points, and presented the evidence effectively”); see also Wood,

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900 F.2d at 1335–36 (denying appointment of counsel where plaintiff complained he had limited

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access to law library and lacked legal education); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir.

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1984) (upholding district court’s denial of appointment of counsel to indigent litigant who had no

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background in practice of law, yet who had thoroughly presented issues in pleading). The burden

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of demonstrating exceptional circumstances is on the plaintiff. Palmer, 560 F.3d at 970.

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II.

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DISCUSSION

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Here, Plaintiff requests the appointment of counsel on the basis that he is indigent with

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limited resources or supplies as his own advocate and requires an attorney to assist him in his

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excessive force case. (ECF No. 8.) The Court finds Plaintiff does not establish the existence of the

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required exceptional circumstances.

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Circumstances common to most prisoners, such as lack of legal education, limited law

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library access, and lack of funds to hire counsel, do not alone establish the exceptional

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circumstances that would warrant appointment of counsel. See Wood, 900 F.2d at 1335–36;

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Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (“If all that was required to establish

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successfully the complexity of the relevant issues was a demonstration of the need for development

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of further facts, practically all cases would involve complex legal issues.”). Plaintiff has not
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identified any exceptional circumstances that would weigh in favor of appointing counsel;

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Plaintiff’s sole argument that he requires the appointment of counsel because he is indigent is

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insufficient. Finally, because of the early stage of the litigation, the Court cannot yet determine

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that Plaintiff has established he is likely to succeed on the merits of his excessive force claim.

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Further, the legal issues in this case do not appear to be particularly complex, and it appears that

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Plaintiff can adequately articulate his claims pro se.
Accordingly, Plaintiff’s motion for appointment of counsel (ECF No. 8) shall be denied,

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without prejudice.

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III.

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CONCLUSION AND ORDER

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For the forgoing reasons, the Court finds Plaintiff has not established exceptional

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circumstances warranting appointment of counsel at this time. Accordingly, IT IS HEREBY

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ORDERED that Plaintiff’s motion to appoint counsel (ECF No. 8) is DENIED.

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IT IS SO ORDERED.
Dated:

November 19, 2021
UNITED STATES MAGISTRATE JUDGE

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