(PC) Martinez v. Pfeiffer ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RICARDO MARTINEZ, Case No. 1:19-cv-01768-SAB (PC) 12 Plaintiff, ORDER DENYING, WITHOUT PREJUDICE, PLAINTIFF’S MOTION FOR 13 v. APPOINTMENT OF COUNSEL 14 C. PFEIFFER, et al., (ECF No. 2) 15 Defendants. 16 17 Plaintiff Ricardo Martinez is a state prisoner proceeding pro se in this civil rights action 18 pursuant to 42 U.S.C. § 1983. 19 On September 18, 2019, Plaintiff initiated the instant action in the United States District 20 Court for the Northern District of California. (ECF No. 1.) On December 16, 2019, the instant 21 action was transferred to this Court. (ECF No. 5.) 22 Currently before the Court is Plaintiff’s motion for appointment of counsel, filed on 23 September 18, 2019. (ECF No. 2.) Plaintiff contends that this Court should appoint counsel to 24 represent him in this action because he cannot afford to hire counsel, he has a limited knowledge 25 of law, he has a TABE score of 2.0, the issues involved in this case are complex, and the 26 appointment of counsel would better enable to present evidence and cross-examine witnesses at 27 trial. (Id.) 28 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 1 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require any attorney to 2 represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1), Mallard v. United States District Court for 3 the Southern District of Iowa, 490 U.S. 296, 298 (1989). Nevertheless, in certain exceptional 4 circumstances, the Court may request the voluntary assistance of counsel pursuant to § 5 1915(e)(1). Rand, 113 F.3d at 1525. 6 Without a reasonable method of securing and compensating counsel, the Court will seek 7 volunteer counsel only in the most serious and exceptional cases. In determining whether 8 “exceptional circumstances exist, the district court must evaluate both the likelihood of success 9 on the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 10 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 11 “Neither of these considerations is dispositive and instead must be viewed together.” Palmer v. 12 Valdez, 560 F.3d 965, 970 (9th Cir. 2009). The burden of demonstrating exceptional 13 circumstances is on the plaintiff. Id. 14 The Court has considered Plaintiff’s request for appointed counsel, but does not find the 15 required exceptional circumstances. Initially, circumstances common to most prisoners, such as 16 lack of legal education, limited law library access, and lack of funds to hire counsel, do not alone 17 establish the exceptional circumstances that would warrant appointment of counsel. Specifically, 18 Plaintiff’s apprehension with pursuing this case on his own, while understandable, is not 19 sufficient grounds for appointing counsel. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th 20 Cir. 1986) (“Most actions require development of further facts during litigation and a pro se 21 litigant will seldom be in a position to investigate easily the facts necessary to support the case.”). 22 Further, while Plaintiff alleges that the issues involved in this case are complex, the Court 23 has reviewed Plaintiff’s complaint and finds both that Plaintiff’s claim do not appear to present 24 novel or complex issues of substantive law and that Plaintiff is able to clearly articulate his 25 claims. Finally, since the Court has not yet screened Plaintiff’s complaint, the Court cannot 26 evaluate Plaintiff’s likelihood of success on the merits of his claims. 27 /// 28 /// 1 Accordingly, Plaintiff's motion for appointment of counsel, (ECF No. 2), is HEREBY 2 | DENIED, without prejudice. 3 4 IT IS SO ORDERED. □□ (Se 5 | Dated: _ January 2, 2020 OF ‘ UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28