(PC) Howard v. Brown, Jr. ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL ANTHONY HOWARD, Case No. 1:18-cv-01710-DAD-EPG (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION 13 FOR APPOINTMENT OF PRO BONO v. COUNSEL, WITHOUT PREJUDICE 14 SGT. ENCINAS, et al., (ECF NO. 43) 15 Defendants. 16 17 18 Michael Howard (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 19 in this civil rights action filed pursuant to 42 U.S.C. § 1983, which includes state law claims. 20 On March 13, 2020, Plaintiff filed a motion for appointment of pro bono counsel. (ECF 21 No. 43).1 Plaintiff asks for appointment of counsel because he has developmental disabilities 22 within the meaning of the Americans with Disabilities Act, which require therapeutic treatment 23 and psychiatric medications; because he is currently housed in the SHU unit; because he is being 24 denied access to the law library and legal materials; because he is not being provided with access 25 to an assistant who is trained in the law; and because Plaintiff needs counsel to assist him with 26 gathering the evidence he needs to prove his case. 27 1 To the extent Plaintiff is asking the Court to order officials at his institution of confinement to provide him with access to the law library and legal materials, he should file a separate motion. 28 1 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 2 | Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds, 154 F.3d 952 3 | (9th Cir. 1998), and the Court cannot require an attorney to represent Plaintiff pursuant to 28 4} US.C. § 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa, 5 | 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the Court may request 6 | the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. 7 Without a reasonable method of securing and compensating counsel, the Court will seek 8 | volunteer counsel only in the most serious and exceptional cases. In determining whether 9 | “exceptional circumstances exist, a district court must evaluate both the likelihood of success of 10 | the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 11 | complexity of the legal issues involved.” Id. (citation and internal quotation marks omitted). 12 The Court will not order appointment of pro bono counsel at this time. The Court has 13 || reviewed the record in this case, and at this time the Court is unable to make a determination that 14 | Plaintiff is likely to succeed on the merits of his claims. Moreover, it appears that Plaintiff can 15 || adequately articulate his claims. 16 Plaintiff is advised that he is not precluded from renewing his motion for appointment of 17 | pro bono counsel at a later stage of the proceedings. 18 For the foregoing reasons, IT IS ORDERED that Plaintiff's motion for appointment of pro 19 | bono counsel is DENIED without prejudice. 20 IT IS SO ORDERED. 22 | Dated: _ March 16, 2020 [Je hey 73 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28