(PC) Willis v. United States ( 2021 )

1 2 UNITED STATES DISTRICT COURT 3 EASTERN DISTRICT OF CALIFORNIA 4 5 KENTRELL WILLIS, Case No. 1:19-cv-00761-NONE-BAM (PC) 6 Plaintiff, ORDER DENYING PLAINTIFF’S SECOND MOTION TO APPOINT COUNSEL 7 v. (ECF No. 44) 8 UNITED STATES OF AMERICA, 9 Defendant. 10 11 Plaintiff Kentrell Willis (“Plaintiff”) is a federal prisoner proceeding pro se in this civil 12 rights action pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2401 et seq. 13 Plaintiff seeks monetary damages from the United States of America for alleged sexual assault 14 and negligence arising out of events which allegedly took place at the United States Penitentiary, 15 Atwater. 16 Currently before the Court is Plaintiff’s second motion to appoint counsel, filed 17 December 13, 2021. (ECF No. 44.) In his motion, Plaintiff states that he is unable to afford 18 counsel, and his imprisonment will greatly limit his ability to litigate. Plaintiff states that the 19 issues involved in this case are complex and will require significant research and investigation. 20 Plaintiff has limited access to the law library and limited knowledge of the law. Plaintiff further 21 argues that a trial in this case will likely involve conflicting testimony and counsel would better 22 enable Plaintiff to present evidence and cross examine witnesses. Plaintiff therefore requests that 23 the Court appoint counsel to assist Plaintiff with the complexity of litigation. (Id.) 24 Defendant has not had an opportunity to respond to the motion, but the Court finds a 25 response unnecessary. The motion is deemed submitted. Local Rule 230(l). 26 As Plaintiff was previously informed, he does not have a constitutional right to appointed 27 counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on 28 other grounds, 154 F.3d 952, 954 n.1 (9th Cir. 1998), and the court cannot require an attorney to 1 represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. U.S. Dist. Court for the S. Dist. 2 of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the court may 3 request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 4 1525. 5 Without a reasonable method of securing and compensating counsel, the Court will seek 6 volunteer counsel only in the most serious and exceptional cases. In determining whether 7 “exceptional circumstances exist, a district court must evaluate both the likelihood of success on 8 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 9 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 10 The Court has considered Plaintiff’s request, but does not find the required exceptional 11 circumstances. Even if it is assumed that Plaintiff is not well versed in the law and that he has 12 made serious allegations which, if proved, would entitle him to relief, his case is not exceptional. 13 This Court is faced with similar cases filed by prisoners proceeding pro se and in forma pauperis 14 almost daily. These prisoners also must conduct legal research and prosecute claims without the 15 assistance of counsel. 16 Furthermore, at this stage in the proceedings, the Court cannot make a determination that 17 Plaintiff is likely to succeed on the merits. Although Plaintiff is proceeding on a cognizable 18 claim, this alone does not indicate a likelihood of success on the merits. Finally, based on a 19 review of the record in this case, the Court does not find that Plaintiff cannot adequately articulate 20 his claims. 21 For the foregoing reasons, Plaintiff’s second motion to appoint counsel, (ECF No. 44), is 22 DENIED, without prejudice. 23 IT IS SO ORDERED. 24 25 Dated: December 14, 2021 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 26 27 28