(PC) Gray v. Khoo ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DANA GRAY, ) Case No.: 1:20-cv-01047-DAD-SAB (PC) ) 12 Plaintiff, ) ) ORDER DENYING PLAINTIFF’S MOTION FOR 13 v. ) APPOINTMENT OF COUNSEL, WITHOUT PREJUDICE 14 A. KHOO, et al., ) ) (ECF No. 34) 15 Defendants. ) ) 16 ) 17 Plaintiff Dana Gray is proceeding 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, filed February 25, 20 2021. 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 th: 2 || merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of th 3 || legal issues involved.” Id. (internal quotation marks and citations omitted). 4 Here, Plaintiff seeks appointment of counsel due to her physical pain and the current COVID- 5 || 19 pandemic. However, the Court does not find the required exceptional circumstances. Even if it 6 || assumed that Plaintiff is not well versed in the law and that he has made serious allegations which, if 7 || proved, would entitle her to relief, her case is not exceptional. The Court is faced with similar cases 8 || almost daily. While the Court recognizes that Plaintiff is at a disadvantage due to his pro se status an 9 || her incarceration, the test is not whether Plaintiff would benefit from the appointment of counsel. Se 10 || Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (“Most actions require development of 11 || further facts during litigation and a pro se litigant will seldom be in a position to investigate easily the 12 || facts necessary to support the case.”) The test is whether exception circumstances exist and here, the 13 not. At this early stage of the proceedings, the Court cannot determine whether Plaintiff is likely t 14 || proceed on the merits of her claim. Circumstances common to most prisoners, such as lack of legal 15 || education and limited law library access, do not establish exceptional circumstances that would 16 || warrant a request for voluntary assistance of counsel. Also, based on a review of the record in this 17 || case, the Court does not find that Plaintiff cannot adequately articulate her claims. There are currentl 18 || no pending deadlines of which Plaintiff must comply, and if Plaintiff requires additional time to 19 || comply with any relevant deadlines and court orders due to her circumstances, she may request an 20 || extension of time when appropriate. Accordingly, Plaintiff's motion for the appointment of counsel 1 21 || denied, without prejudice. 22 23 ||} IT IS SO ORDERED. A (re 24 |! pated: _ February 26, 2021 OF 25 UNITED STATES MAGISTRATE JUDGE 26 27 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28