Sanders v. Mims ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 PHILLIP SANDERS, ) Case No.: 1:20-cv-00634-NONE-SAB (PC) ) 12 Plaintiff, ) ) ORDER DENYING PLAINTIFF’S MOTION FOR 13 v. ) APPOINTMENT OF PRO BONO COUNSEL, WITHOUT PREJUDICE 14 MARGARET MIMS, et al., ) ) (ECF No. 16) 15 Defendants. ) ) 16 ) 17 Plaintiff Phillip Sanders is proceeding pro se and in forma pauperis in this civil rights action 18 pursuant to 42 U.S.C. § 1983. 19 Currently before the Court is Plaintiff’s request for appointment of pro bono counsel (ECF No. 20 20). Plaintiff seeks appointment of counsel to allow him the “opportunity to communicate with the 21 court and the defendants [to] address the seriousness of the matter while fast tracking any remedies or 22 changes in policy that should be immediately imposed[.]” (ECF No. 16 at 2.) Plaintiff further 23 contends “the pro bono program would be a perfect opportunity to resolve or remedy this situation so 24 that no one should have to suffer gasping for air while waiting to receive a breathing treatment while 25 in confinement when the purpose of the asthma pumps provides relief until treatment can [be] 26 received[.]” (Id.) 27 /// 28 /// 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a constitutional right to appointed counsel in this action, Rand v. 2 |) Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds, 154 F.3d 952 (9t 3 || Cir. 1998), and the Court cannot require an attorney to represent Plaintiff pursuant to 28 U.S.C. § 4 || 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296, 5 (1989). However, in certain exceptional circumstances the Court may request the voluntary 6 |] assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. Without a reasonable 7 || method of securing and compensating counsel, the Court will seek volunteer counsel only in the most 8 || serious and exceptional cases. In determining whether “exceptional circumstances exist, a district 9 || court must evaluate both the likelihood of success of the merits [and] the ability of the [plaintiff] to 10 || articulate his claims pro se in light of the complexity of the legal issues involved.” Id. (citation and 11 || internal quotation marks omitted). 12 The Court will not order appointment of pro bono counsel at this time. The Court has reviewe 13 || the record in this case, and at this time the Court cannot make a determination that Plaintiff is likely t 14 || succeed on the merits of his claims (the case is still at the screening stage). Moreover, based on the 15 || complaint, it appears that Plaintiff can adequately articulate his claims. Plaintiff is advised that he is 16 || not precluded from renewing his motion for appointment of pro bono counsel at a later stage of the 17 || proceedings. Accordingly, Plaintiff's motion for appointment of pro bono counsel is denied. 18 19 |} IT IS SO ORDERED. A (re 20 || Dated: _November 1, 2021 IF UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28