(PC) Arellano v. CDCR ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARCOS ARELLANO, ) Case No.: 1:20-cv-00011-SAB (PC) ) 12 Plaintiff, ) ) ORDER DENYING PLAINTIFF’S MOTION 13 v. ) FOR APPOINMENT OF COUNSEL, WITHOUT PREJUDICE 14 CALIFORNIA DEPARTMENT ) ) (ECF No. 29) 15 CORRECTIONS AND REHABILITATION, ) ) 16 Defendant. ) ) 17 ) 18 Plaintiff Marcos Arellano is appearing pro se and in forma pauperis in this civil rights action 19 pursuant to 42 U.S.C. § 1983. 20 Currently before the Court is Plaintiff’s motion for appointment of counsel, filed February 1, 21 2021. Plaintiff seeks counsel because he is indigent, his imprisonment impacts his ability to litigate 22 this action, the issues in the case are complex, a trial will likely involve conflicting testimony, and he 23 has been unable to obtain counsel on his own. 24 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 25 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require any attorney to represent 26 plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern 27 District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the court 28 1 || may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 2 || 1525. 3 Without a reasonable method of securing and compensating counsel, the court will seek 4 || volunteer counsel only in the most serious and exceptional cases. In determining whether 5 || “exceptional circumstances exist, the district court must evaluate both the likelihood of success on thi 6 || merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the 7 || legal issues involved.” Id. (internal quotation marks and citations omitted). 8 In the present case, the Court does not find the required exceptional circumstances. Even if it 9 || assumed that Plaintiff is not well versed in the law and that he has made serious allegations which, if 10 || proved, would entitle him to relief, his case is not exceptional. The Court is faced with similar cases 11 || almost daily. While the Court recognizes that Plaintiff is at a disadvantage due to his pro se status an 12 || his incarceration, the test is not whether Plaintiff would benefit from the appointment of counsel. See 13 || Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (“Most actions require development of 14 || further facts during litigation and a pro se litigant will seldom be in a position to investigate easily the 15 || facts necessary to support the case.”) The test is whether exception circumstances exist and here, the 16 do not. In addition, circumstances common to most prisoners, such as lack of legal education and 17 || limited law library access, do not establish exceptional circumstances that would warrant a request fo 18 || voluntary assistance of counsel. Further, at this stage of the proceedings, the Court cannot make a 19 || finding that Plaintiff is likely to succeed on the merits. Accordingly, Plaintiff's motion for the 20 || appointment of counsel is denied, without prejudice. 21 22 IT IS SO ORDERED. Al (ee 23 || Dated: _ February 2, 2021 OF 24 UNITED STATES MAGISTRATE JUDGE 25 26 27 28