(PC) Brookins v. Hernandez ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BARRY LEE BROOKINS, ) Case No. 1:17-cv-01675-AWI-SAB (PC) ) 12 Plaintiff, ) ) ORDER DENYING PLAINTIFF’S SECOND 13 v. ) MOTION FOR APPOINTMENT OF COUNSEL, WITHOUT PREJUDICE 14 M. HERNANDEZ, et al., ) ) [ECF No. 86] 15 Defendants. ) ) 16 ) 17 Plaintiff Barry Lee Brookins is appearing pro se and in forma pauperis in this civil rights 18 action pursuant to 42 U.S.C. § 1983. 19 Currently before the Court is Plaintiff’s second motion for appointment of counsel, filed on 20 June 23, 2020. 21 As Plaintiff is aware, there is no constitutional right to appointed counsel in this action, Rand 22 v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require any attorney to 23 represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the 24 Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances 25 the Court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 26 F.3d at 1525. 27 /// 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 the 4 merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the 5 legal issues involved.” Id. (internal quotation marks and citations omitted). 6 In the present case, the Court does find that neither the interests of justice nor exceptional 7 circumstances warrant appointment of counsel at this time. LaMere v. Risley, 827 F.2d 622, 626 (9th 8 Cir. 1987); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). Plaintiff requests the Court 9 appoint counsel based upon the following: the complexity of the case; his imprisonment greatly limits 10 his ability to litigate; he is unable to afford counsel; he has no legal education; and the appointment of 11 counsel would “bring forth all tangible pertinent records in discovery.” Mot. at 1-2. Plaintiff is 12 proceeding on an Eighth Amendment claim against Hernandez and Williams. Plaintiff contends 13 Hernandez and Williams should not have placed him on CSW after he passed their metal detector searches 14 and showed them a medical chrono indicating he could not take off his underwear, bend over, or squat for 15 an unclothed body search. The legal issues in this case are not complex, and Plaintiff has adequately 16 litigated this case to date. Although the allegations in Plaintiff’s complaint were sufficient to state a 17 plausible claim for relief, Plaintiff has not shown a likelihood of success on the merits. Indeed, 18 Defendants have filed a motion for summary judgment on the merits of the Plaintiff’s claims, and 19 Plaintiff has filed a lengthy opposition. Thus, it is premature to determine that there is a likelihood of 20 success on the merits. 21 While a pro se litigant may be better served with the assistance of counsel, so long as a pro se 22 litigant, such as Plaintiff in this instance, is able to “articulate his claims against the relative 23 complexity of the matter,” the “exceptional circumstances” which might require the appointment of 24 counsel do not exist. Rand v. Rowland, 113 F.3d at 1525 (finding no abuse of discretion under 28 25 U.S.C. § 1915(e) when district court denied appointment of counsel despite fact that pro se prisoner 26 “may well have fared better-particularly in the realm of discovery and the securing of expert 27 testimony.”) Circumstances common to most prisoners, such as lack of legal education and limited 28 law library access, do not establish exceptional circumstances that warrant a request for voluntary WAS FOUN □□ EVES OPA RUUD OF PIR Ue THe TOYO VM VIS 1 || assistance of counsel. Thus, the Court finds that Plaintiff's arguments are not exceptional 2 || circumstances warranting the appointment of counsel at this time. Accordingly, Plaintiff second 3 || motion for appointment of counsel is DENIED, without prejudice. 4 5 || IT IS SO ORDERED. A (Fe 6 ated: _ June 24, 2020 OF 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28