(PC)Calloway v. Youssee et al

Filing 22

ORDER DENYING 21 Motion to Appoint Counsel, signed by Magistrate Judge Barbara A. McAuliffe on 05/07/2022. (Maldonado, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMISI JERMAINE CALLOWAY,

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Plaintiff,

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ORDER DENYING MOTION TO APPOINT
COUNSEL

v.

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Case No. 1:21-cv-01450-JLT-BAM (PC)

YOUSSEE, et al.,

(ECF No. 21)

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Defendants.

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Plaintiff Jamisi Jermaine Calloway (“Plaintiff”) is a state prisoner proceeding pro se in

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this civil rights action pursuant to 42 U.S.C. § 1983.
On May 4, 2022, the Court screened Plaintiff’s first amended complaint and issued

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findings and recommendations that this action proceed against Defendants Y. Rao, D. Pilar, H.

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Diaz, T. Loar, and H Smuzynski for deliberate indifference to serious medical needs in violation

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of the Eighth Amendment when they released Plaintiff from a suicide crisis bed, and against

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Defendants D. A. Lopez and M. Cuevas for deliberate indifference to serious medical needs in

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violation of the Eighth Amendment when they failed to intervene during Plaintiff’s two suicide

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attempts. (ECF No. 20.) The Court further recommended that all other claims and defendants be

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dismissed based on Plaintiff’s failure to state claims upon which relief may be granted or for

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failure to properly join claims in compliance with Federal Rules of Civil Procedure 18 and 20.

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(Id.)
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Currently before the Court is Plaintiff’s motion requesting appointment of counsel for the

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limited purpose of curing the deficiencies in his complaint and to serve all defendants properly

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joined to the Court’s requirements, dated May 2, 2022, and filed May 5, 2022. (ECF No. 21.)

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Plaintiff states that he has made every effort to seek legal assistance and counsel through written

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correspondence to professional attorneys or law firms who have declined to take on his case.

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Plaintiff further contends that he is disabled and suffering from medical and mental health

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decompensation due to retaliation from CDCR/CCHCS administration and their employees.

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Plaintiff states that he has had continued medical issues that make it difficult to prosecute his

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legal actions, and counsel is needed due to the complexity of his case, Plaintiff’s disabilities, and

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his lack of access to unlimited law library research. (Id.)

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Plaintiff is informed that he does not have a constitutional right to appointed counsel in

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this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on other

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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 has made serious allegations which, if proved,

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would entitle him to relief, his case is not exceptional. This Court is faced with similar cases filed

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almost daily by prisoners who are proceeding pro se, suffering from physical and mental health

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issues, and who must obtain discovery and research different legal claims with limited access to

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the law library. These plaintiffs also must litigate their 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. Although the Court has found that Plaintiff’s first

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amended complaint states some cognizable claims, this does not indicate a likelihood of success

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on the merits. Finally, based on a review of the record in this case, the Court does not find that

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Plaintiff cannot adequately articulate his claims.

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Accordingly, Plaintiff’s motion to appoint counsel, (ECF No. 21), is HEREBY DENIED,
without prejudice.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

May 7, 2022

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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