(PS) Warden v. Cowan et al

Filing 30

ORDER signed by Magistrate Judge Allison Claire on 10/04/19 DENYING 29 Motion to Appoint Counsel. (Benson, A.)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MASA NATHANIEL WARDEN, 12 13 14 15 No. 2:19-cv-00431-MCE-AC Plaintiff, v. ORDER B. COWAN, et al., Defendants. 16 17 The court is in receipt of plaintiff’s motion to appoint counsel. ECF No. 29. Plaintiff is 18 incarcerated and is bringing his civil case as a self-represented litigant proceeding in forma 19 pauperis. ECF No. 10. He requests that the court appoint counsel, asserting he is physically 20 disabled and in constant pain, which makes litigating difficult and is an extraordinary 21 circumstance. ECF No. 29 at 1-2. Plaintiff argues his disability prevents him from being able to 22 file motions and write documents in a timely fashion. Id. at 3. 23 In civil cases, a pro se litigant's right to counsel “is a privilege and not a right.” United 24 States ex Rel. Gardner v. Madden, 352 F.2d 792, 793 (9th Cir. 1965) (citation omitted). 25 “Appointment of counsel should be allowed only in exceptional cases.” Id. When determining 26 whether “exceptional circumstances” exist, the court must consider the likelihood of success on 27 the merits as well as the ability of the plaintiff to articulate his claims pro se in light of the 28 complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). 1 1 Having considered the relevant factors, the court finds there are no exceptional 2 circumstances in this case, and that appointment of counsel is not warranted at this time. 3 Plaintiff’s case is not overly complex. See ECF No. 13. Plaintiff’s physical limitations do not 4 constitute exceptional circumstances; there is no indication that he is incompetent, and plaintiff’s 5 actions in this case so far indicate he is capable of pursuing his claims. Further, circumstances 6 common to most prisoners, such as lack of legal education and limited law library access, do not 7 establish exceptional circumstances that would warrant a request for voluntary assistance of 8 counsel. Appointment of counsel therefore is not appropriate. 9 10 11 Plaintiff’s motion to appoint counsel (ECF No. 29) is DENIED. IT IS SO ORDERED. DATED: October 4, 2019 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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