(PC) Ayobi v. Romero ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SHAJIA AYOBI, ) Case No. 1:19-cv-00964-SAB (PC) ) 12 Plaintiff, ) ORDER DENYING PLAINTIFF’S ) SECOND MOTION FOR APPOINTMENT 13 v. ) OF COUNSEL, AND GRANTING ) REQUEST FOR EXTENSION OF TIME 14 ROMERO, ) 15 Defendant. ) (ECF Nos. 28, 29) ) 16 ) 17 Plaintiff Shajia Ayobi is appearing pro se and in forma pauperis in this civil rights action 18 pursuant to 42 U.S.C. § 1983. 19 Currently before the Court is Plaintiff’s motion for appointment of counsel and request for an 20 extension of time to file a dispositive motion, filed October 26, 2020. (ECF Nos. 24, 25.) 21 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 22 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require any attorney to represent 23 plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern 24 District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the Court 25 may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 26 1525. 27 Without a reasonable method of securing and compensating counsel, the Court will seek 28 volunteer counsel only in the most serious and exceptional cases. In determining whether 1 “exceptional circumstances exist, the district court must evaluate both the likelihood of success on the 2 merits [and] the ability of the [plaintiff] to articulate [her] claims pro se in light of the complexity of 3 the legal issues involved.” Id. (internal quotation marks and citations omitted). 4 In the present case, the Court does not find the required exceptional circumstances. Plaintiff 5 contends that she is at a disadvantage in litigating this case because of her imprisonment and 6 indigency. Even if it assumed that plaintiff is not well versed in the law and that she has made serious 7 allegations which, if proved, would entitle him to relief, her case is not exceptional. The Court is 8 faced with similar cases almost daily. While the Court recognizes that Plaintiff is at a disadvantage 9 due to her pro se status and her incarceration, the test is not whether Plaintiff would benefit from the 10 appointment of counsel. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (“Most 11 actions require development of further facts during litigation and a pro se litigant will seldom be in a 12 position to investigate easily the facts necessary to support the case.”) Circumstances common to 13 most prisoners, such as lack of legal education and limited law library access, do not establish 14 exceptional circumstances that would warrant a request for voluntary assistance of counsel. The test 15 is whether exception circumstances exist and here, they do not. At this point in the litigation, the 16 Court cannot find that Plaintiff is likely to succeed on the merits, and Defendant has filed a motion for 17 summary judgment on the merits. Accordingly, Plaintiff’s motion for the appointment of counsel is 18 denied, without prejudice. 19 On October 26, 2020, Plaintiff filed objections to the Court’s October 9, 2020 order denying 20 her request for an extension of time without prejudice. (ECF No. 28.) The Court construes Plaintiff’s 21 objections as a motion for an extension of the dipositive motion deadline. On the basis of good cause, 22 the Court will grant Plaintiff thirty (30) days from the date of service of this order to file a dispositive 23 motion and/or opposition to Defendant’s motion for summary judgment, which was filed on October 24 15, 2020. 25 /// 26 /// 27 /// 28 /// 1 Based on the foregoing, it is HEREBY ORDERED that: 2 1. Plaintiff's second motion for appointment of counsel is denied, without prejudice; and 3 2. Plaintiff is granted thirty (30) days from the date of service of this order to file a 4 dispositive motion and/or opposition to Defendant’s pending motion for summary 5 judgment. 6 7 IT IS SO ORDERED. Al oe 8 Dated: _ October 27, 2020 OF 9 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28