(PC) Dalke v. King ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOSHUA JASON DALKE, ) Case No.: 1:20-cv-00534-AWI-SAB (PC) ) 12 Plaintiff, ) ) ORDER DENYING PLAINTIFF’S THIRD 13 v. ) MOTION FOR APPOINTMENT OF COUNSEL, WITHOUT PREJUDICE 14 KING CLARK, et al., ) ) (ECF No. 123) 15 Defendants. ) ) 16 ) 17 Plaintiff Joshua Jason Dalke is proceeding pro se and in forma pauperis in this civil rights 18 action pursuant to 42 U.S.C. § 1983. 19 Currently before the Court is Plaintiff’s third motion for appointment of counsel, filed August 20 9, 2021. 21 As Plaintiff is aware, he does not have a constitutional right to appointed counsel in this action, 22 Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require any attorney to 23 represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the 24 Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances 25 the court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 26 F.3d at 1525. 27 /// 28 /// 1 Without a reasonable method of securing and compensating counsel, the court will seek 2 volunteer counsel only in the most serious and exceptional cases. In determining whether 3 “exceptional circumstances exist, the district court must evaluate both the likelihood of success on the 4 merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the 5 legal issues involved.” Id. (internal quotation marks and citations omitted). 6 In the present case, the Court does not find the required exceptional circumstances. Plaintiff 7 seeks appointment of counsel in to oppose Defendants’ exhaustion-related motion for summary 8 judgment and to file his own motion for summary judgment. Even if it assumed that Plaintiff is not 9 well versed in the law and that he has made serious allegations which, if proved, would entitle him to 10 relief, his case is not exceptional. The Court is faced with similar cases almost daily. While the Court 11 recognizes that Plaintiff is at a disadvantage due to his pro se status and his incarceration, the test is 12 not whether Plaintiff would benefit from the appointment of counsel. See Wilborn v. Escalderon, 789 13 F.2d 1328, 1331 (9th Cir. 1986) (“Most actions require development of further facts during litigation 14 and a pro se litigant will seldom be in a position to investigate easily the facts necessary to support the 15 case.”) The test is whether exception circumstances exist and here, they do not. ). Circumstances 16 common to most prisoners, such as lack of legal education and limited law library access, do not 17 establish exceptional circumstances that would warrant a request for voluntary assistance of counsel. 18 In addition, although a pro se litigant may be better served with the assistance of counsel, so long as a 19 pro se litigant, such as Plaintiff in this instance, is able to “articulate his claims against the relative 20 complexity of the matter,” the “exceptional circumstances” which might require the appointment of 21 counsel do not exist. Rand v. Rowland, 113 F.3d at 1525 (finding no abuse of discretion under 28 22 U.S.C. § 1915(e) when district court denied appointment of counsel despite fact that pro se prisoner 23 “may well have fared better-particularly in the realm of discovery and the securing of expert 24 testimony.”) Here, Plaintiff has failed both an opposition to Defendants’ motion for summary 25 judgment and his own motion for summary judgment. (ECF Nos. 106, 118.) Based on a review of the 26 record in this case, the Court finds that Plaintiff is capable and to date has adequately litigated this 27 /// 28 /// 1 || action. Accordingly, Plaintiff's third motion for the appointment of counsel is denied, without 2 || prejudice. 3 4 IT IS SO ORDERED. ot fe 5 Dated: _ August 11, 2021 OF 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28