Tran v. Young et al

Filing 49

ORDER signed by Magistrate Judge Deborah Barnes on 10/30/19 DENYING 48 Motion to Appoint Counsel. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BINH C. TRAN,

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Plaintiff,

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No. 2:17-cv-1260 MCE DB P

v.

ORDER

K. YOUNG, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights

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action pursuant to 42 U.S.C. § 1983. Plaintiff claims defendants violated his rights when they

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failed to protect him, falsified documents and failed to call a witness during a disciplinary

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hearing, and treated him differently than other inmates. Presently before the court is plaintiff’s

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motion to appoint counsel. (ECF No. 48.)
In support of his motion to appoint counsel, plaintiff argues that he needs counsel to make

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use of his discovery rights. Plaintiff alleges that the issues in this case are complex and he is

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unable to investigate because of the resistance of defendants. Specifically, plaintiff alleges

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defendants are withholding witness statements. He claims the case requires extensive

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documentary discovery, depositions of prison officials, and documents that he is not permitted to

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have. He further states that his ability to litigate is limited because English is his second language

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and he cannot afford counsel.

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The United States Supreme Court has ruled that district courts lack authority to require

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counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490

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U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the

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voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d

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1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

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The test for exceptional circumstances requires the court to evaluate the plaintiff’s

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likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in

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light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328,

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1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances

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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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establish exceptional circumstances that would warrant a request for voluntary assistance of

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counsel.

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In the present case, the court does not find the required exceptional circumstances. The

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court acknowledges that any pro se litigant “would be better served with the assistance of

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counsel.” Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (citing Wilborn, 789 F.2d at

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1331). However, so long as plaintiff is able to “articulate his claims against the relative

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

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of counsel do not exist. Rand, 113 F.3d at 1525 (finding district court did not abuse its discretion

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under 28 U.S.C. § 1915(e) when it denied the appointment of counsel despite the fact that the

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inmate “may well have fared better-particularly in the realms of discovery and the securing of

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expert testimony.”).
Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for the appointment of

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counsel (ECF No. 48) is denied.

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Dated: October 30, 2019

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DB:12

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DB:1/Orders/Prisoner/Civil.Rights/tran1260.31

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