(PC) Struggs v. Pfeiffer ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CEDRIC LYNN STRUGGS, 1:18-cv-01336-NONE-GSA-PC 12 Plaintiff, ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL 13 vs. (ECF No. 22.) 14 C. PFEIFFER, et al., 15 Defendants. 16 17 On December 2, 2019, Plaintiff filed a motion seeking the appointment of counsel. 18 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 19 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require an attorney to represent 20 Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the 21 Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional 22 circumstances the Court may request the voluntary assistance of counsel pursuant to section 23 1915(e)(1). Rand, 113 F.3d at 1525. 24 Without a reasonable method of securing and compensating counsel, the Court will seek 25 volunteer counsel only in the most serious and exceptional cases. In determining whether 26 “exceptional circumstances exist, the district court must evaluate both the likelihood of success 27 of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 28 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 1 In the present case, the Court does not find the required exceptional circumstances. 2 Plaintiff argues that he cannot afford counsel, his imprisonment will greatly limit his ability to 3 litigate, and he is receiving mental health care at the prison. These conditions are serious and 4 make it more difficult for Plaintiff to litigate, but they do not make Plaintiff’s case exceptional 5 under Ninth Circuit law. At this stage in the proceedings, the Court cannot make a determination 6 that Plaintiff is likely to succeed on the merits. On April 10, 2020, the Court issued an order for 7 Plaintiff to show cause why this case should not be dismissed as barred by Heck v. Humphrey, 8 512 U.S. 477, 483 (1994), which may dispose of the case. Moreover, based on the record in this 9 case, the Court finds that Plaintiff is able to adequately articulate his claims. Further, the legal 10 issue in this case -- whether Plaintiff received due process before he was found guilty of a Rules 11 Violation -- is not complex. Therefore, Plaintiff’s motion shall be denied without prejudice to 12 renewal of the motion at a later stage of the proceedings. 13 Accordingly, for the foregoing reasons, Plaintiff’s motion for the appointment of counsel 14 is HEREBY DENIED, without prejudice. 15 16 IT IS SO ORDERED. 17 Dated: May 6, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28