(PC) Mills v. Jones ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 THOMAS K. MILLS, Case No. 1:21-cv-01193-HBK (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION TO APPOINT COUNSEL 13 v. (Doc. No. 10) 14 I.Z. JONES, et al., 15 Defendants. 16 17 18 Plaintiff Thomas K. Mills is a current state prisoner proceeding in forma pauperis on his 19 complaint filed pursuant to 42 U.S.C. § 1983. (Doc. No. 1). Pending before the Court is 20 Plaintiff’s motion seeking appointment of counsel filed September 30, 2021. (Doc. No. 10). 21 The United States Constitution does not require appointment of counsel in civil cases. See 22 Lewis v. Casey, 518 U.S. 343, 354 (1996) (explaining Bounds v. Smith, 430 U.S. at 817, did not 23 create a right to appointment of counsel in civil cases). This Court has discretionary authority 24 under 28 U.S.C. § 1915 to appoint counsel for an indigent to commence, prosecute, or defend a 25 civil action. See 28 U.S.C. § 1915(e)(1) (stating the court has authority to appoint counsel for 26 people unable to afford counsel); see also United States v. McQuade, 519 F.2d 1180 (9th Cir. 27 1978) (addressing relevant standard of review for motions to appoint counsel in civil cases) (other 28 citations omitted). However, motions to appoint counsel in civil cases are granted only in 1 “exceptional circumstances.” Id. at 1181. The Court may consider many factors to determine if 2 exceptional circumstances warrant appointment of counsel including, but not limited to, proof of 3 indigence, the likelihood of success on the merits, and the ability of the plaintiff to articulate his 4 or her claims pro se in light of the complexity of the legal issues involved. Id.; see also Rand v. 5 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds on reh’g en 6 banc, 154 F.2d 952 (9th Cir. 1998). The Court “is not required to articulate reasons for denying 7 appointment of counsel if the reasons are clear from the record.” Johnson v. United States Dept. 8 of Treasury, 939 F.2d 820, 824 (9th Cir.1991). 9 Plaintiff’s seeks appointment of counsel because (1) he is unable to afford an attorney; (2) 10 his imprisonment makes litigation more difficult; (3) he has limited knowledge of the law and 11 limited law library access, and this case is complex; (4) conflicting testimony may be presented at 12 trial; and (5) he has been unable to independently secure an attorney. (Doc. No. 10 at 2-3). 13 Plaintiff has failed to demonstrate exceptional circumstances warrant appointment of 14 counsel. Plaintiff’s indigence does not qualify “as an exceptional circumstance in a prisoner civil 15 rights case.” Montano v. Solomon, 2010 WL 2403389, at *2 (E.D. Cal. June 11, 2010); Callender 16 v. Ramm, 2018 WL 6448536, at *3 (E.D. Cal. Dec. 10, 2018). Although Plaintiff is proceeding 17 pro se and is incarcerated, he faces the same obstacles all pro se prisoners face. Challenges 18 prosecuting a case, such as law library access, “are ordinary for prisoners pursuing civil rights 19 claim” and cannot form the basis for appointment of counsel. Courtney v. Kandel, 2020 WL 20 1432991, at *1 (E.D. Cal. Mar. 24, 2020). Contrary to Plaintiff’s assertion, the Court does not 21 find the issues in this case are “so complex that due process violations will occur absent the 22 presence of counsel.” Bonin v. Vasquez, 999 F.2d 425, 428–29 (9th Cir. 1993). While the 23 assistance of counsel during trial may be helpful, the “relevant consideration is not one of 24 convenience” but rather exceptionalness. Howard v. Hedgpeth, 2010 WL 1641087, at *2 (E.D. 25 Cal. Apr. 20, 2010). Finally, Plaintiff’s inability thus far to find counsel is “not a proper factor 26 for the Court to consider in determining whether to request counsel.” (Id). Should this case 27 progress and Plaintiff’s circumstances change so that he is able to demonstrate exceptional 28 een ene eee IRIE II ORO IEE OSE EID IE ESE EE 1 || circumstances, he may renew his motion for appointment of counsel at that time.! 2 Accordingly, it is ORDERED: 3 Plaintiff's motion to appoint counsel (Doc. No. 10) is DENIED without prejudice. 4 ° Dated: _ October 3, 2021 Mibu □ Zh fare Hack 6 HELENA M. BARCH-KUCHTA ; UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 ' Plaintiff is welcome to view the resources for pro se litigants available at https://prose.cacd.uscourts.gov/. While the website is specific to our neighboring Central District of 28 | California, it nonetheless contains information helpful for guiding pro se litigants in the Eastern District.