(PC) McElroy v. Gomez ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LATWAHN MCELROY, ) Case No.: 1:20-cv-00658-SAB (PC) ) 12 Plaintiff, ) ) ORDER DENYING, WITHOUT PREJUDICE, 13 v. ) PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL 14 GOMEZ, et al., ) ) [ECF No. 9] 15 Defendants. ) ) 16 ) ) 17 ) 18 Plaintiff Latwahn McElroy 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 June 11, 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 wOAOe 4: UVM YOU SPAD MVE eeN YySt 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). Even if it assumed that Plaintiff is not 10 || well versed in the law and that he has made serious allegations which, if proved, would entitle him to 11 || relief, his case is not exceptional. The Court is faced with similar cases almost daily. While the 12 || recognizes that Plaintiff is at a disadvantage due to his pro se status and his incarceration, the test is 13 || not whether Plaintiff would benefit from the appointment of counsel. See Wilborn v. Escalderon, □□□ 14 || F.2d 1328, 1331 (9th Cir. 1986) (“Most actions require development of further facts during litigation 15 || and a pro se litigant will seldom be in a position to investigate easily the facts necessary to support th 16 || case.”) Circumstances common to most prisoners, such as lack of legal education and limited law 17 || library access, do not establish exceptional circumstances that would warrant a request for voluntary 18 || assistance of counsel. In the present case, the Court has screened Plaintiff's complaint and found that 19 || he failed to state a cognizable claim for relief. Therefore, the Court cannot find that there is a 20 || likelihood of success on the merits. Accordingly, Plaintiff's motion for appointment of counsel is 21 || DENIED without prejudice. 22 23 ||} IT IS SO ORDERED. A (Fe 24 pated: _ June 12, 2020 OF 25 UNITED STATES MAGISTRATE JUDGE 26 27 28