(PC) Dalke v. King ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOSHUA JASON DALKE, ) Case No.: 1:20-cv-00534-SAB (PC) ) 12 Plaintiff, ) ) ORDER DENYING PLAINTIFF’S MOTION FOR 13 v. ) APPOINTMENT OF COUNSEL, WITHOUT PREJUDICE 14 KING CLARK, et al., ) ) [ECF No. 5] 15 Defendants. ) ) 16 ) ) 17 ) 18 Plaintiff Joshua Jason Dalke is proceeding 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 on April 27, 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 /// UVTI SPA MUI OP Oe OY Ov 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 In the present case, the Court does not find the required exceptional circumstances. Even if it 7 || assumed that plaintiff is not well versed in the law and that he has made serious allegations which, if 8 || proved, would entitle him to relief, his case is not exceptional. The Court is faced with similar cases 9 || almost daily. While the Court recognizes that Plaintiff is at a disadvantage due to his pro se status an 10 || his incarceration, the test is not whether Plaintiff would benefit from the appointment of counsel. □□□□ 11 || Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (“Most actions require development of 12 || further facts during litigation and a pro se litigant will seldom be in a position to investigate easily the 13 || facts necessary to support the case.”) The test is whether exception circumstances exist and here, the 14 || do not. In particular, on April 27, 2020, the Court found that Plaintiff failed to state a cognizable 15 || claim for relief and granted leave to amend. (ECF No. 8.) As a result, the Court is precluded from 16 || making a finding that Plaintiff is likely to succeed on the merits. Accordingly, Plaintiff's motion for 17 || the appointment of counsel is denied, without prejudice. 18 19 IS SO ORDERED. A (re 20 Dated: _ April 29, 2020 OF UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28