(PC) Razaq v. California Department of Corrections ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KAHLILULLAH RAZAQ, Case No. 1:20-cv-01116-BAM (PC) 12 Plaintiff, ORDER DENYING MOTION TO APPOINT COUNSEL 13 v. (ECF No. 9) 14 CALIFORNIA DEPARTMENT OF CORRECTIONS, et al., 15 Defendants. 16 17 Plaintiff Kahlilullah Razaq (“Plaintiff”) is a state prisoner proceeding pro se and in forma 18 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. 19 Currently before the Court is Plaintiff’s renewed motion to appoint counsel, filed 20 September 10, 2020. (ECF No. 9.) In his motion, Plaintiff again states that he does not know 21 how to read or write in English and he needs an attorney to help him prepare his lawsuit. Plaintiff 22 also references the Court’s August 28, 2020 screening order, which directed him to identify the 23 Doe defendants in his amended complaint, stating that a Sergeant Timboler or Timbler did 24 Plaintiff’s interview and knows all the officers who worked that day on A yard. Plaintiff requests 25 that someone request this information from Sergeant Timbler, because he does not know how to 26 complete his complaint and motion himself. Plaintiff also states that he is being transferred from 27 /// 28 /// 1 Tehachapi Prison to Calapay or Calapack Prison1 on September 8, 2020, and he will provide the 2 Court with his updated address once he has been transferred. (Id.) 3 As Plaintiff has been informed, he does not have a constitutional right to appointed 4 counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on 5 other grounds, 154 F.3d 952, 954 n.1 (9th Cir. 1998), and the court cannot require an attorney to 6 represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. U.S. Dist. Court for the S. Dist. 7 of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the court may 8 request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 9 1525. 10 Without a reasonable method of securing and compensating counsel, the Court will seek 11 volunteer counsel only in the most serious and exceptional cases. In determining whether 12 “exceptional circumstances exist, a district court must evaluate both the likelihood of success on 13 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 14 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 15 The Court has considered Plaintiff’s request, but does not find the required exceptional 16 circumstances. Even if it is assumed that Plaintiff is not well versed in the law and that he has 17 made serious allegations which, if proved, would entitle him to relief, his case is not exceptional. 18 This Court is faced with similar cases filed by prisoners who are proceeding pro se and in forma 19 pauperis almost daily. Many of these prisoners also have limited education and a limited ability 20 to read and write in English. These litigants also must conduct legal research and litigate their 21 cases without the assistance of counsel. 22 Furthermore, at this stage in the proceedings, the Court cannot make a determination that 23 Plaintiff is likely to succeed on the merits. Plaintiff’s original complaint was screened and the 24 Court found that it failed to state a cognizable claim. Plaintiff has not yet filed an amended 25 complaint attempting to cure the deficiencies identified by the Court’s screening order, and 26 therefore the Court cannot evaluate the likelihood of success on the merits. Finally, based on a 27 28 1 It appears Plaintiff will be transferred to Calipatria State Prison. 1 review of the record in this case, the Court does not find that Plaintiff cannot adequately articulate 2 his claims. 3 Accordingly, Plaintiff’s motion to appoint counsel, (ECF No. 9), is HEREBY DENIED, 4 without prejudice. As discussed in the Court’s August 28, 2020 screening order, Plaintiff’s first 5 amended complaint or notice of voluntary dismissal is currently due on or before September 30, 6 2020. In light of the representation that Plaintiff is being moved, the Court will grant a short 7 continuance. Plaintiff’s first amended complaint or notice of voluntary dismissal is due on 8 or before October 16, 2020. 9 IT IS SO ORDERED. 10 11 Dated: September 15, 2020 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28