(PC) Davis v. Phui ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KELLY DAVIS, Case No. 1:20-cv-276-HBK 12 Plaintiff, ORDER DENYING MOTION TO APPOINT COUNSEL 13 v. (Doc. No. 21) 14 DR. PHUI, ET. AL., 15 Defendants. 16 17 Plaintiff Kelly Davis is a current state prisoner proceeding in forma pauperis on his first 18 amended complaint filed pursuant to 42 U.S.C. § 1983 alleging deliberate indifference to a 19 serious medical condition. (Doc. No. 10). Pending before the Court is Plaintiff’s motion seeking 20 appointment of counsel including attachments detailing Plaintiff’s wife’s attempts to secure pro 21 bono counsel, filed on October 20, 2021. (Doc. No. 21). 22 The United States Constitution does not require appointment of counsel in civil cases. See 23 Lewis v. Casey, 518 U.S. 343, 354 (1996) (explaining Bounds v. Smith, 430 U.S. at 817, did not 24 create a right to appointment of counsel in civil cases). This Court has discretionary authority 25 under 28 U.S.C. § 1915 to appoint counsel for an indigent to commence, prosecute, or defend a 26 civil action. See 28 U.S.C. § 1915(e)(1) (stating the court has authority to appoint counsel for 27 people unable to afford counsel); see also United States v. McQuade, 519 F.2d 1180 (9th Cir. 28 1978) (addressing relevant standard of review for motions to appoint counsel in civil cases) (other 1 citations omitted). However, motions to appoint counsel in civil cases are granted only in 2 “exceptional circumstances.” Id. at 1181. The Court may consider many factors to determine if 3 exceptional circumstances warrant appointment of counsel including, but not limited to, proof of 4 indigence, the likelihood of success on the merits, and the ability of the plaintiff to articulate his 5 or her claims pro se in light of the complexity of the legal issues involved. Id.; see also Rand v. 6 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds on reh’g en 7 banc, 154 F.2d 952 (9th Cir. 1998). The Court “is not required to articulate reasons for denying 8 appointment of counsel if the reasons are clear from the record.” Johnson v. United States Dept. 9 of Treasury, 939 F.2d 820, 824 (9th Cir.1991). 10 Plaintiff’s seeks appointment of counsel for numerous reasons including, inter alia, (1) he 11 is unable to afford an attorney; (2) his imprisonment makes litigation more difficult; (3) he has 12 limited knowledge of the law and limited law library access, and this case is complex; (4) 13 conflicting testimony may be presented at trial; and (5) he has been unable to independently 14 secure an attorney. (Doc. No. 21 at 1-3). 15 Plaintiff has failed to demonstrate exceptional circumstances warrant appointment of 16 counsel. Plaintiff’s indigence does not qualify “as an exceptional circumstance in a prisoner civil 17 rights case.” Montano v. Solomon, 2010 WL 2403389, at *2 (E.D. Cal. June 11, 2010); Callender 18 v. Ramm, 2018 WL 6448536, at *3 (E.D. Cal. Dec. 10, 2018). Although Plaintiff is proceeding 19 pro se and is incarcerated, he faces the same obstacles all pro se prisoners face. Challenges 20 prosecuting a case, such as law library access, “are ordinary for prisoners pursuing civil rights 21 claim” and cannot form the basis for appointment of counsel. Courtney v. Kandel, 2020 WL 22 1432991, at *1 (E.D. Cal. Mar. 24, 2020). Contrary to Plaintiff’s assertion, the Court does not 23 find the issues in this case are “so complex that due process violations will occur absent the 24 presence of counsel.” Bonin v. Vasquez, 999 F.2d 425, 428–29 (9th Cir. 1993). While the 25 assistance of counsel during trial may be helpful, the “relevant consideration is not one of 26 convenience” but rather exceptionalness. Howard v. Hedgpeth, 2010 WL 1641087, at *2 (E.D. 27 Cal. Apr. 20, 2010). Finally, Plaintiff’s inability thus far to find counsel is “not a proper factor 28 for the Court to consider in determining whether to request counsel.” (Id). Should this case nen nn eee enn nnn ns ono no nO NE I II EEE 1 | progress and Plaintiff's circumstances change so that he is able to demonstrate exceptional 2 || circumstances, he may renew his motion for appointment of counsel at that time.! 3 Accordingly, it is ORDERED: 4 Plaintiff's motion to appoint counsel (Doc. No. 21) is DENIED without prejudice. 5 ° | Dated: _ October 21, 2021 Wiha Th. Doareh Hack 7 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 □□ ' While it appears Plaintiff's wife has made many attempts to secure pro bono counsel on Plaintiffs 27 | behalf, Plaintiff may want 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.