(PC) Calderon v. Magdy ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOSE GUADALUPE CALDERON, ) Case No.: 1:19-cv-01734-DAD-SAB (PC) ) 12 Plaintiff, ) ) ORDER DENYING PLAINTIFF’S MOTION FOR 13 v. ) APPOINTMENT OF COUNSEL 14 MAGDY DANIALS, et.al., ) [ECF No. 19] ) 15 Defendants. ) ) 16 ) ) 17 ) 18 Plaintiff Jose Guadalupe Calderon is appearing pro se and in forma pauperis in this civil rights 19 action pursuant to 42 U.S.C. § 1983. 20 Currently before the Court is Plaintiff’s motion for appointment of counsel, filed March 9, 21 2020. 22 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 23 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require any attorney to represent 24 plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern 25 District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the court 26 may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 27 1525. 28 /// 1 Without a reasonable method of securing and compensating counsel, the court will seek 2 || volunteer counsel only in the most serious and exceptional cases. In determining whether 3 || “exceptional circumstances exist, the district court must evaluate both the likelihood of success on thi 4 || merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of th 5 || legal issues involved.” Id. (internal quotation marks and citations omitted). 6 The test for exceptional circumstances requires the Court to evaluate the Plaintiffs likelihood 7 || of success on the merits and the ability of the Plaintiff to articulate his claims pro se in light of the 8 || complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 9 |) 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances common to most 10 || prisoners, such as lack of legal education and limited law library access, do not establish exceptional 11 || circumstances that would warrant a request for voluntary assistance of counsel. In the present case, 12 || the Court does not find extraordinary circumstances to warrant appointment of counsel. On February 13 || 28, 2020, the undersigned issued Findings and Recommendations recommending the action be 14 || dismissed for failure to state a cognizable claim for relief, after Plaintiff was notified of the 15 || deficiencies and amended the complaint twice. Plaintiff has demonstrated literacy and an ability to 16 || communicate through pleadings and motions to sufficiently articulate his claims pro se. Palmer v. 17 || Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (affirming denial of appointment of counsel where a 18 || plaintiff demonstrates ability to effectively present case). As a result, the Court is precluded from 19 || making a finding that Plaintiff is likely to succeed on the merits. Accordingly, Plaintiffs motion for 20 || appointment of counsel is denied. 21 22 ||IT IS SO ORDERED. fe 23 |! Dated: _March 10, 2020 OF 24 UNITED STATES MAGISTRATE JUDGE 25 26 27 28