(PC) Urmancheev v. Ndoh ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ALIM S. URMANCHEEV, No. 1:21-cv-00255-HBK (PC) 12 Plaintiff, ORDER DENYING PLAINTIFFS MOTION TO APPOINT COUNSEL 13 v. 14 R. NDOH, et. al. (Doc. No. 3) 15 Defendants. 16 17 18 Pending before the Court is plaintiff’s motion for leave to appoint counsel filed February 19 24, 2021. (Doc. No. 3). Plaintiff is proceeding pro se on his civil rights complaint filed under 42 20 U.S.C. § 1983. (Doc. No. 1). The court previously granted plaintiff’s motion for leave to 21 proceed in forma pauperis due to his indigency. (Doc. No. 5). Plaintiff now moves for 22 appointment of counsel on the following factors: (1) he is unable to locate or afford counsel, (2) 23 his “serious mental illness” makes him unable to comprehend legal issues; (3) he has a limited 24 proficiency in English and knowledge of the law; and, (4) because a trial will result in conflicting 25 testimony. (Doc. No. 3 pp. 1-2). 26 The United States Constitution does not require appointment of counsel in civil cases. See 27 Lewis v. Casey, 518 U.S. 343, 354 (1996) (explaining Bounds v. Smith, 430 U.S. at 817, did not 28 1 create a right to appointment of counsel in civil cases). Under 28 U.S.C. § 1915, this court has 2 discretionary authority to appoint counsel for an indigent to commence, prosecute, or defend a 3 civil action. See 28 U.S.C. § 1915(e)(1) (stating the court has authority to appoint counsel for 4 people unable to afford counsel); see also United States v. McQuade, 519 F.2d 1180 (9th Cir. 5 1978) (addressing relevant standard of review for motions to appoint counsel in civil cases) (other 6 citations omitted). However, motions to appoint counsel in civil cases are granted only in 7 “exceptional circumstances.” Id. at 1181. The court may consider many factors including, but 8 not limited to, proof of indigence, the likelihood of success on the merits, and the ability of the 9 plaintiff to articulate his or her claims pro se in light of the complexity of the legal issues 10 involved, to determine if exceptional circumstances warrant appointment of counsel. Id.; see also 11 Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds on 12 reh’g en banc, 154 F.2d 952 (9th Cir. 1998). 13 Here, the court does not find exceptional circumstances warrant appointment of counsel 14 for plaintiff. Although plaintiff is proceeding pro se and is incarcerated, he faces the same 15 obstacles all pro se prisoners face. Plaintiff does not indicate the nature of his alleged “mental 16 illness” or how it affects his ability to prosecute this action. Indeed, a review of the pleadings 17 filed by plaintiff to date show he can articulate his claims in this case. See Brown v. Reif, 2019 18 WL 989874, at *2 (E.D. Cal. Mar. 1, 2019) (denying appointment of counsel where the plaintiff’s 19 filing demonstrate ability to properly litigate case despite mental illness). Further, a plaintiff’s 20 limited English proficiency “does not constitute an exceptional circumstance.” Garces v. 21 Degadeo, WL 1521078, at *1 (E.D. Cal. May 22, 2007). There is therefore no basis for the court 22 taking the extraordinary step of appointing counsel. Further, this case is at the initial stages of 23 litigation. Should this case progress and plaintiff’s circumstances change and he is able to 24 demonstrate exceptional circumstances, he may renew his motion for appointment at counsel at 25 that time. 26 Accordingly, it is ORDERED: 27 Plaintiff’s motion to appoint counsel (Doc. No. 3) is DENIED without prejudice. 28 1 > | IT IS SO ORDERED. ° Dated: __March 10, 2021 oo. WN. fered Yack 4 HELENA M. BARCH-KUCHTA ; UNITED STATES MAGISTRATE JUDGE 7 8 9 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28