(PC) Alexander v. Garza ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JULIAN J. ALEXANDER, ) Case No.: 1:20-cv-01486-DAD-SAB (PC) ) 12 Plaintiff, ) ) ORDER DENYING PLAINTIFF’S MOTION FOR 13 v. ) APPOINTMENT OF COUNSEL, WITHOUT PREJUDICE 14 GARZA, et al., ) ) (ECF No. 35) 15 Defendants. ) ) 16 ) 17 Plaintiff Julian J. Alexander 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 motion for appointment of counsel, filed November 4, 20 2021. Plaintiff asks for appointment of counsel because he is unable to afford counsel; his 21 imprisonment limits his ability to litigate properly; the issues involved in this case are complex; a trial 22 in this case will likely involve conflicting testimony and counsel would be able to present adequate 23 evidence and cross-examine witnesses; he is currently on court ordered medication; he has limited 24 knowledge of the law; he is housed in segregation; and he has not been able to obtain a lawyer on his 25 own. (ECF No. 35.) 26 There is no constitutional right to appointed counsel in this action, Rand v. Rowland, 113 F.3d 27 1520, 1525 (9th Cir. 1997), and the court cannot require any attorney to represent plaintiff pursuant to 28 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa, 490 1 || U.S. 296, 298 (1989). However, in certain exceptional circumstances the court may request the 2 || voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. 3 Without a reasonable method of securing and compensating counsel, the court will seek 4 || volunteer counsel only in the most serious and exceptional cases. In determining whether 5 || “exceptional circumstances exist, the district court must evaluate both the likelihood of success on th 6 || merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the 7 || legal issues involved.” Id. (internal quotation marks and citations omitted). 8 In the present case, the Court does find that neither the interests of justice nor exceptional 9 || circumstances warrant appointment of counsel at this time. LaMere v. Risley, 827 F.2d 622, 626 □□□ 10 Cir. 1987); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). The Court is faced with similar 11 || cases almost daily. Plaintiff is proceeding on claims of retaliation and deliberate indifference and the 12 || legal issues present in this action are not complex. Plaintiff has thoroughly set forth his allegations ir 13 || the complaint and litigated this case to date. Circumstances common to most prisoners, such as lack 14 || of legal education and limited law library access, do not establish exceptional circumstances that 15 || would warrant a request for voluntary assistance of counsel. While a pro se litigant may be better 16 || served with the assistance of counsel, so long as a pro se litigant, such as Plaintiff in this instance, is 17 || able to “articulate his claims against the relative complexity of the matter,” the “exceptional 18 || circumstances” which might require the appointment of counsel do not exist. Rand v. Rowland, 113 19 || F.3d at 1525 (finding no abuse of discretion under 28 U.S.C. § 1915(e) when district court denied 20 || appointment of counsel despite fact that pro se prisoner “may well have fared better-particularly in th 21 realm of discovery and the securing of expert testimony.”) Accordingly, Plaintiff motion for 22 || appointment of counsel is DENIED, without prejudice. 23 24 IT IS SO ORDERED. A (re 25 ated: _ November 5, 2021 OF 26 UNITED STATES MAGISTRATE JUDGE 27 28