(PC) L.C. Cunningham v. Martinez ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 L.C. CUNNINGHAM, Case No. 1:19-cv-01508-AWI-EPG (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION 13 FOR APPOINTMENT OF PRO BONO v. COUNSEL, WITHOUT PREJUDICE 14 M. MARTINEZ, et al., (ECF No. 80) 15 Defendants. 16 17 18 L.C. Cunningham (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 19 in this civil rights action filed pursuant to 42 U.S.C. § 1983. 20 On June 17, 2021, Plaintiff filed a motion for appointment of pro bono counsel. (ECF No. 21 80). Plaintiff asks for appointment of counsel because he is unable to afford counsel; because his 22 imprisonment is greatly limiting his ability to litigate; because the issues involved in this case are 23 complex and will require significant research and investigation; because he has limited access to 24 the law library; because he is being denied access to the email system that allows him to review 25 relevant law inside his cell by way of a tablet; because a trial in this case will likely involve 26 conflicting testimony and counsel would better enable him to present evidence and cross examine 27 witnesses; and because counsel would help him avoid criminal prosecution, which he is capable 28 of facing because he has to testify at his deposition under oath. 1 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 2 | Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds, 154 F.3d 952 3 | (9th Cir. 1998), and the Court cannot require an attorney to represent Plaintiff pursuant to 28 4] US.C. § 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa, 5 | 490 US. 296, 298 (1989). However, in certain exceptional circumstances the Court may request 6 || the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. 7 Without a reasonable method of securing and compensating counsel, the Court will seek 8 || volunteer counsel only in the most serious and exceptional cases. In determining whether 9 | “exceptional circumstances exist, a district court must evaluate both the likelihood of success of 10 || the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 11 || complexity of the legal issues involved.” Id. (citation and internal quotation marks omitted). 12 The Court will not order appointment of pro bono counsel at this time. The Court has 13 || reviewed the record in this case, and at this time the Court is unable to make a determination that 14 | Plaintiff is likely to succeed on the merits of his claims. Moreover, it appears that Plaintiff can 15 || adequately articulate his claims. 16 Plaintiff is advised that he is not precluded from renewing his motion for appointment of 17 || pro bono counsel at a later stage of the proceedings. 18 For the foregoing reasons, IT IS ORDERED that Plaintiff's motion for appointment of pro 19 || bono counsel is DENIED without prejudice. 20 IT IS SO ORDERED. 22] Dated: _ June 21, 2021 Ise hey 73 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28