Barker v. Washburn ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY BARKER, Case No. 1:21-cv-01169-NONE-SAB 12 Plaintiff, ORDER DENYING MOTION TO APPOINT COUNSEL 13 v. (ECF No. 8) 14 WASHBURN, et al., 15 Defendants. 16 17 18 19 20 Anthony Barker (“Plaintiff”), a detainee at the Kings County Jail proceeding pro se and in 21 forma pauperis in this matter, initiated this civil rights action on August 2, 2021. (ECF No. 1.) On 22 September 7, 2021, Plaintiff filed a motion to appoint counsel. (ECF No. 8.) For the reasons stated 23 herein, Plaintiff’s motion shall be denied. 24 I. 25 LEGAL STANDARD 26 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 27 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), overruled on other grounds, 154 F.3d 952 (1998), 28 and district courts lack authority to require counsel to represent indigent prisoners in § 1983 1 pursuant to 28 U.S.C. § 1915(e)(1), Mallard v. United States District Court, 490 U.S. 296, 298, 2 301–03 (1989). Nevertheless, in certain exceptional circumstances, the court may request the 3 voluntary assistance of counsel pursuant to § 1915(e)(1). See 28 U.S.C. § 1915(e)(1); Rand, 113 4 F.3d at 1525; Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 5 F.2d 1332, 1335 (9th Cir. 1990). 6 When determining whether “exceptional circumstances” exist, the Court must consider 7 Plaintiff’s likelihood of success on the merits as well as the ability of Plaintiff to articulate his 8 claims pro se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 9 965, 970 (9th Cir. 2009). “Neither of these considerations is dispositive and instead must be viewed 10 together.” Id. (district court did not abuse discretion in declining to appoint counsel where plaintiff 11 “was well-organized, made clear points, and presented the evidence effectively”); see also Wood, 12 900 F.2d at 1335–36 (denying appointment of counsel where plaintiff complained he had limited 13 access to law library and lacked legal education); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir. 14 1984) (upholding district court’s denial of appointment of counsel to indigent litigant who had no 15 background in practice of law, yet who had thoroughly presented issues in pleading). The burden 16 of demonstrating exceptional circumstances is on the plaintiff. Palmer, 560 F.3d at 970. 17 II. 18 DISCUSSION 19 Here, Plaintiff requests the appointment of counsel on the basis that he is indigent with 20 limited resources or supplies as his own advocate and requires an attorney to assist him in his 21 excessive force case. (ECF No. 8.) The Court finds Plaintiff does not establish the existence of the 22 required exceptional circumstances. 23 Circumstances common to most prisoners, such as lack of legal education, limited law 24 library access, and lack of funds to hire counsel, do not alone establish the exceptional 25 circumstances that would warrant appointment of counsel. See Wood, 900 F.2d at 1335–36; 26 Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (“If all that was required to establish 27 successfully the complexity of the relevant issues was a demonstration of the need for development 28 of further facts, practically all cases would involve complex legal issues.”). Plaintiff has not 1 | identified any exceptional circumstances that would weigh in favor of appointing counsel; 2 | Plaintiff's sole argument that he requires the appointment of counsel because he is indigent is 3 | insufficient. Finally, because of the early stage of the litigation, the Court cannot yet determine 4 | that Plaintiff has established he is likely to succeed on the merits of his excessive force claim. 5 | Further, the legal issues in this case do not appear to be particularly complex, and it appears that 6 | Plaintiff can adequately articulate his claims pro se. 7 Accordingly, Plaintiff's motion for appointment of counsel (ECF No. 8) shall be denied, 8 | without prejudice. 9 III. 10 CONCLUSION AND ORDER 11 For the forgoing reasons, the Court finds Plaintiff has not established exceptional 12 | circumstances warranting appointment of counsel at this time. Accordingly, IT IS HEREBY 13 | ORDERED that Plaintiff's motion to appoint counsel (ECF No. 8) is DENIED. 14 15 IT IS SO ORDERED. DAM Le 16 | Dated: _November 19, 2021 __ OO 4 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28