(PC) Matthews v. Ramos et al

Filing 33

ORDER DENYING 32 Plaintiff's Second Motion for Appointment of Counsel, Without Prejudice, signed by Magistrate Judge Stanley A. Boone on 8/24/2023. (Rivera, O)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GENE RAYMOND MATTHEWS, III

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Plaintiff,
v.

No. 1:22-cv-01508-JLT-SAB (PC)
ORDER DENYING PLAINTIFF’S SECOND
MOTION FOR APPOINTMENT OF
COUNSEL, WITHOUT PREJUDICE

S. RAMOSS, et al.

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(ECF No. 32)

Defendants.

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Plaintiff is proceeding pro se and in forma pauperis in this action filed pursuant to 42
U.S.C. § 1983.
Currently before the Court is Plaintiff’s second motion for appointment of counsel, filed
August 23, 2023.

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There is no constitutional right to appointed counsel in this action, Rand v. Rowland, 113

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F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require any attorney to represent plaintiff

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pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern District

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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 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.

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“exceptional circumstances exist, the district court must evaluate both the likelihood of success on
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In determining whether

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the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity

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of the legal issues involved.” Id. (internal quotation marks and citations omitted).

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In the present case, the Court does not find the required exceptional circumstances. Even

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if it assumed that Plaintiff is not well versed in the law and that he has made serious allegations

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which, if proved, would entitle him to relief, his case is not exceptional. The Court is faced with

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similar cases almost daily. Plaintiff is in no different position than any other pro se litigation.

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While the Court recognizes that Plaintiff is at a disadvantage due to his pro se status and his

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incarceration, the test is not whether Plaintiff would benefit from the appointment of counsel. See

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Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (“Most actions require development

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of further facts during litigation and a pro se litigant will seldom be in a position to investigate

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easily the facts necessary to support the case.”) The test is whether exception circumstances exist

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and here, they do not. At this stage of the litigation, the Court cannot find Plaintiff is likely to

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succeed on the merits as the scheduling order issued on May 12, 2023. complaint. In addition,

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circumstances common to most prisoners, such as lack of legal education and limited law library

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access, do not establish exceptional circumstances that would warrant a request for voluntary

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assistance of counsel. Accordingly, Plaintiff’s second motion for the appointment of counsel is

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denied, without prejudice.

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IT IS SO ORDERED.
Dated:

August 24, 2023
UNITED STATES MAGISTRATE JUDGE

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