(PC)Wallace v. White ( 2020 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 WILLIAM JAMES WALLACE, II, Case No. 1:20-cv-00844-EPG (PC) 9 Plaintiff, 10 ORDER DENYING PLAINTIFF’S v. MOTION FOR APPOINTMENT OF 11 COUNSEL AND FOR SERVICE OF J. WHITE, et al. PROCESS ON DEFENDANTS 12 Defendants. (ECF No. 14) 13 14 15 Plaintiff, William James Wallace, II, is proceeding pro se and in forma pauperis in this 16 civil rights action pursuant to 42 U.S.C. § 1983. On October 23, 2020, Plaintiff filed a motion for 17 the appointment of counsel and for Defendants to be served with Plaintiff’s complaint. (ECF No. 18 14.) The Court will deny the motion. 19 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 20 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require an attorney to 21 represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1), Mallard v. United States District Court for 22 the Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional 23 circumstances the Court may request the voluntary assistance of counsel pursuant to § 1915(e)(1). 24 Rand, 113 F.3d at 1525. 25 Without a reasonable method of securing and compensating counsel, the Court will seek 26 volunteer counsel only in the most serious and exceptional cases. In determining whether 27 “exceptional circumstances exist, the district court must evaluate both the likelihood of success 28 of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the —eee— EE IRI OIE OSI IE IO 1 | complexity of the legal issues involved.” /d. (internal quotation marks and citations omitted). 2 In the present case, the Court does not find the required exceptional circumstances. The 3 | Court has screened Plaintiff's complaint and first amended complaint and found that he failed to 4 | state any cognizable claim. Even if it is assumed that Plaintiff is not well versed in the law and 5 || has had limited access to the law library,! and that he is able to amend his complaint to state 6 || cognizable claims, which, if proved, would entitle him to relief, his case is not exceptional. The 7 | Court is faced with similar cases almost daily. Further, at this early stage in the proceedings, and 8 | particularly in light of the Court’s screening orders finding that Plaintiff has failed to state any 9 | cognizable claim, the Court cannot make a determination that Plaintiff is likely to succeed on the 10 | merits. Finally, based on a review of the record in this case, the Court does not find that Plaintiff 11 | cannot adequately articulate his claims. Id. 12 As to Plaintiff's request that Defendants be served with Plaintiffs first amended 13 | complaint, the Court is required to screen complaints brought by prisoners seeking relief against a 14 | governmental entity or officer or employee of a governmental entity, and must dismiss a 15 | complaint or portion thereof if the prisoner has raised claims that are legally “frivolous or 16 || malicious,” that fail to state a claim upon which relief may be granted, or that seek monetary 17 | relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(a), (b)(1), (2). 18 For the foregoing reasons, IT IS ORDERED that Plaintiff's motion for appointment of 19 | counsel and for service of the first amended complaint on Defendants (ECF No. 14) is DENIED 20 | without prejudice. IT IS SO ORDERED. 22 | Dated: _ October 26, 2020 [see hey — UNITED STATES MAGISTRATE JUDGE 24 25 ' Plaintiff contends that since he came into Defendants’ custody on January 21, 2020, he has only had one hour of 26 law library access. (ECF No. 14 at 1-2.) However, the Court set out in the screening orders the relevant legal standards for the claims he appears to be pursuing in this action, including claims under the Americans with Disabilities Act (“ADA”) and claims for lack of access to the law library. (ECF Nos. 9, 13.) Further, the Court has 27 given Plaintiff leave to file a second amended complaint to allege additional true factual allegations. Plaintiff has not demonstrated how lack of access to the law library is interfering with his ability to draft a second amended complaint 28 that provides those additional factual allegations.