(PC) Wilson v. Sherman et al

Filing 13

ORDER DENYING Plaintiff's 9 Motion to Appoint Counsel signed by Magistrate Judge Sheila K. Oberto on 01/18/2023. (Flores, E)

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Case 1:22-cv-00874-JLT-SKO Document 13 Filed 01/19/23 Page 1 of 4 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID W. WILSON, 12 13 14 Plaintiff, v. Case No.: 1:22-cv-00874 JLT SKO (PC) ORDER DENYING PLAINTIFF’S MOTION TO APPOINT COUNSEL (Doc. 9) STUART SHERMAN, et al., 15 Defendants. 16 17 18 Plaintiff David W. Wilson is appearing pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. 19 I. 20 On August 25, 2022, Plaintiff filed a motion seeking the appointment of counsel. (Doc. 9.) PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL 21 Plaintiff contends his imprisonment will greatly limit his ability to litigate the complex issues 22 involved in this action. (Id. at 1.) Plaintiff also contends he has limited access to the law library 23 given its hours of operation and staff shortages and inadequate access given the library’s 24 photocopy procedures. (Id.) Plaintiff asserts granting counsel “would guarantee important 25 Factor’s of the case to show merit,” noting counsel’s ability to investigate. (Id. at 2.) Plaintiff 26 contends appointment of counsel “is mandatory only when the circumstances of a particular case 27 indicate that Appointment of Counsel is necessary to prevent due process violations …,” quoting 28 Ninth Circuit case law. (Id. at 2-3, underlining in original.) He states his “case will not only be Case 1:22-cv-00874-JLT-SKO Document 13 Filed 01/19/23 Page 2 of 4 1 prejudiced, but lost. Not for want of meritorious claims, but rather for want of evidence to prove 2 [the] merit within the claims.” (Id. at 3, brackets in original.) Plaintiff maintains his claims are not 3 meritless, noting the exhibits appended to his complaint and their purported content. (Id. at 4-5.) 4 Plaintiff has also attached several exhibits in support of his motion. (Id. at 7-23.) 5 II. DISCUSSION 6 Plaintiffs do not have a constitutional right to appointed counsel in § 1983 actions. Rand v. 7 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on other grounds, 154 F.3d 952, 954 8 n.1 (9th Cir. 1998). Nor can the Court require an attorney to represent a party under 28 U.S.C. § 9 1915(e)(1). See Mallard v. U.S. Dist. Court, 490 U.S. 296, 304-05 (1989). In “exceptional 10 circumstances,” however, the Court may request the voluntary assistance of counsel pursuant to 11 section 1915(e)(1). Rand, 113 F.3d at 1525. 12 Given that the Court has no reasonable method of securing and compensating counsel, the 13 Court will seek volunteer counsel only in extraordinary cases. In determining whether 14 “exceptional circumstances exist, a district court must evaluate both the likelihood of success on 15 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 16 complexity of the legal issues involved.” Rand, 113 F.3d at 1525 (internal quotation marks & 17 citations omitted). 18 In the present case, the Court does not find the required exceptional circumstances. Even 19 assuming Plaintiff is not well versed in the law and has made serious allegations that, if proven, 20 would entitle him to relief, Plaintiff’s case is not exceptional. The Court is faced with similar 21 cases almost daily. While the Court recognizes that Plaintiff is at a disadvantage due to his pro se 22 status and his incarceration, the test is not whether Plaintiff would benefit from the appointment 23 of counsel. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). The test is whether 24 exceptional circumstances exist—here, they do not. Circumstances common to most prisoners, 25 such as lack of legal education and limited law library access, do not establish exceptional 26 circumstances that would warrant a request for voluntary assistance of counsel. See, e.g., Faultry 27 v. Saechao, 2020 WL 2561596, at *2 (E.D. Cal., May 20, 2020) (stating that “[c]ircumstances 28 common to most prisoners, such as lack of legal education and limited law library access, do not 2 Case 1:22-cv-00874-JLT-SKO Document 13 Filed 01/19/23 Page 3 of 4 1 establish exceptional circumstances supporting appointment of counsel” and noting that the 2 “impacts of the COVID-19 health crisis on prison operations are also common to all prisoners”). 3 In this case, Plaintiff’s allegation of Eighth Amendment claims of deliberate indifference to 4 serious medical needs is simply not one involving exceptional circumstances. 5 At this stage in the proceedings, the Court cannot determine whether Plaintiff is likely to 6 succeed on the merits. Plaintiff’s complaint has not yet been screened as required by 28 U.S.C. § 7 1915A(a). Plaintiff’s complaint will be screened in due course. As Plaintiff was previously 8 advised (see Doc. 3 at 3-4 [First Informational Order]), this Court is one of the busiest district 9 courts in the nation and delays are inevitable. To the extent Plaintiff contends he has 10 demonstrated the merits of his claims by virtue of his complaint and its exhibits, those claims 11 have not yet been proven. The complaint asserts allegations that may or may not present plausible 12 or cognizable claims; however, that determination has not yet been made. 13 The fact that an attorney may be better able to perform research, investigate, and prepare 14 for and represent Plaintiff at trial, again, does not change the analysis. There is little doubt most 15 pro se litigants “find it difficult to articulate [their] claims,” and would be better served with the 16 assistance of counsel. Wilborn, 789 F.2d at 1331. For this reason, in the absence of counsel, 17 federal courts employ procedures which are highly protective of a pro se litigant's rights. See 18 Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding pro se complaint to less stringent standard) 19 (per curiam). In fact, where a plaintiff appears pro se in a civil rights case, the court must construe 20 the pleadings liberally and afford the plaintiff any benefit of the doubt. Karim–Panahi v. Los 21 Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). The rule of liberal construction is 22 “particularly important in civil rights cases.” Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 23 1992). Thus, where a pro se litigant can “articulate his claims” in light of the relative complexity 24 of the matter, the “exceptional circumstances” which might require the appointment of counsel do 25 not exist. Wilborn, 789 F.2d at 1331; accord Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). 26 // 27 // 28 // 3 Case 1:22-cv-00874-JLT-SKO Document 13 Filed 01/19/23 Page 4 of 4 1 III. 2 For the foregoing reasons, Plaintiff’s motion for the appointment of counsel (Doc. 9) is 3 CONCLUSION AND ORDER DENIED without prejudice. 4 5 6 7 IT IS SO ORDERED. Dated: /s/ Sheila K. Oberto January 18, 2023 . UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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