(PC) Schowachert v. Polley

Filing 12

ORDER DENYING Plaintiff's 10 Motion to Appoint Counsel signed by Magistrate Judge Stanley A. Boone on 02/05/2024. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOHNPAUL SCHOWACHERT,

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Plaintiff,

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v.

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BILL POLLEY,

No. 1:23-cv-01645-NODJ-SAB (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR APPOINTMENT OF COUNSEL
(ECF No. 10)

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Defendant.

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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 motion for appointment of counsel, filed February
2, 2024.
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), 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. United States District Court for

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the Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional

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circumstances the court may request the voluntary assistance of counsel pursuant to section

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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
volunteer counsel only in the most serious and exceptional cases. In determining whether
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“exceptional circumstances exist, the district court must evaluate both the likelihood of success

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on 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 and

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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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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. While the Court recognizes that Plaintiff is at a disadvantage due to

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his pro se status and his incarceration, the test is not whether Plaintiff would benefit from the

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appointment of counsel. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (“Most

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actions require development of further facts during litigation and a pro se litigant will seldom be

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in a position to investigate easily the facts necessary to support the case.”) The test is whether

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exception circumstances exist and here, they do not. Indeed, Findings and Recommendations

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were issued to dismiss the case as duplicative. Thus, the Court finds that Plaintiff fails to state a

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cognizable constitutional claim upon which relief may be granted. As a result, the Court is

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precluded form making a finding that Plaintiff is likely to succeed on the merits. Accordingly,

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Plaintiff’s motion for the appointment of counsel is denied.

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IT IS SO ORDERED.
Dated:

February 5, 2024
UNITED STATES MAGISTRATE JUDGE

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