(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)

Case 1:22-cv-00874-JLT-SKO Document 13 Filed 01/19/23 Page 1 of 4

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DAVID W. WILSON,

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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.,

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Defendants.

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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.

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I.

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On August 25, 2022, Plaintiff filed a motion seeking the appointment of counsel. (Doc. 9.)

PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL

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Plaintiff contends his imprisonment will greatly limit his ability to litigate the complex issues

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involved in this action. (Id. at 1.) Plaintiff also contends he has limited access to the law library

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given its hours of operation and staff shortages and inadequate access given the library’s

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photocopy procedures. (Id.) Plaintiff asserts granting counsel “would guarantee important

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Factor’s of the case to show merit,” noting counsel’s ability to investigate. (Id. at 2.) Plaintiff

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contends appointment of counsel “is mandatory only when the circumstances of a particular case

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indicate that Appointment of Counsel is necessary to prevent due process violations …,” quoting

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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

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prejudiced, but lost. Not for want of meritorious claims, but rather for want of evidence to prove

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[the] merit within the claims.” (Id. at 3, brackets in original.) Plaintiff maintains his claims are not

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meritless, noting the exhibits appended to his complaint and their purported content. (Id. at 4-5.)

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Plaintiff has also attached several exhibits in support of his motion. (Id. at 7-23.)

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II.

DISCUSSION

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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). In “exceptional

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circumstances,” however, the Court may request the voluntary assistance of counsel pursuant to

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

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Given that the Court has no reasonable method of securing and compensating counsel, the

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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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In the present case, the Court does not find the required exceptional circumstances. 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. Circumstances common to most prisoners,

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

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circumstances that would warrant a request for voluntary assistance of counsel. See, e.g., Faultry

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v. Saechao, 2020 WL 2561596, at *2 (E.D. Cal., May 20, 2020) (stating that “[c]ircumstances

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common to most prisoners, such as lack of legal education and limited law library access, do not
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Case 1:22-cv-00874-JLT-SKO Document 13 Filed 01/19/23 Page 3 of 4

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establish exceptional circumstances supporting appointment of counsel” and noting that the

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“impacts of the COVID-19 health crisis on prison operations are also common to all prisoners”).

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In this case, Plaintiff’s allegation of Eighth Amendment claims of deliberate indifference to

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serious medical needs is simply not one involving exceptional circumstances.

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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. Plaintiff’s complaint has not yet been screened as required by 28 U.S.C. §

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1915A(a). Plaintiff’s complaint will be screened in due course. As Plaintiff was previously

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advised (see Doc. 3 at 3-4 [First Informational Order]), this Court is one of the busiest district

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courts in the nation and delays are inevitable. To the extent Plaintiff contends he has

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demonstrated the merits of his claims by virtue of his complaint and its exhibits, those claims

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have not yet been proven. The complaint asserts allegations that may or may not present plausible

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or cognizable claims; however, that determination has not yet been made.

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The fact that an attorney may be better able to perform research, investigate, and prepare

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for and represent Plaintiff at trial, again, does not change the analysis. There is little doubt most

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pro se litigants “find it difficult to articulate [their] claims,” and would be better served with the

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

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federal courts employ procedures which are highly protective of a pro se litigant's rights. See

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Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding pro se complaint to less stringent standard)

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(per curiam). In fact, where a plaintiff appears pro se in a civil rights case, the court must construe

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

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

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

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1992). Thus, where a pro se litigant can “articulate his claims” in light of the relative complexity

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of the matter, the “exceptional circumstances” which might require the appointment of counsel do

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not exist. Wilborn, 789 F.2d at 1331; accord Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009).

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//

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//

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//
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Case 1:22-cv-00874-JLT-SKO Document 13 Filed 01/19/23 Page 4 of 4

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III.

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For the foregoing reasons, Plaintiff’s motion for the appointment of counsel (Doc. 9) is

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CONCLUSION AND ORDER

DENIED without prejudice.

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IT IS SO ORDERED.
Dated:

/s/ Sheila K. Oberto

January 18, 2023

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UNITED STATES MAGISTRATE JUDGE

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