(PC) Hernandez v. Ogboehi ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ARMANDO HERNANDEZ, ) Case No.: 1:20-cv-01019-NONE-SAB (PC) ) 12 Plaintiff, ) ) ORDER DENYING PLAINTIFF’S SECOND 13 v. ) MOTION FOR APPOINTMENT OF COUNSEL, WITHOUT PREJUDICE 14 IFEOMA OGBOEHI, et al., ) ) (ECF No. 38) 15 Defendants. ) ) 16 ) 17 Plaintiff Armando Hernandez 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 second motion for appointment of counsel, filed 20 January 31, 2022. Plaintiff seeks appointment of counsel because the case is complex, requires expert 21 testimony, he has limited access to the law library and legal material, and discovery is necessary. 22 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 23 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require any attorney to represent 24 plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern 25 District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the court 26 may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 27 1525. 28 /// 1 Without a reasonable method of securing and compensating counsel, the court will seek 2 || volunteer counsel only in the most serious and exceptional cases. In determining whether 3 || “exceptional circumstances exist, the district court must evaluate both the likelihood of success on th 4 || merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of th 5 || legal issues involved.” Id. (internal quotation marks and citations omitted). 6 In the present case, the Court does not find the required exceptional circumstances. Even if it 7 || assumed that plaintiff is not well versed in the law and that he has made serious allegations which, if 8 || proved, would entitle him to relief, his case is not exceptional. The Court is faced with similar cases 9 || almost daily. This case is proceeding on Plaintiffs deliberate indifference and retaliation claims, and 10 || the record supports the finding that Plaintiff has sufficiently articulated his claims and litigated this 11 || action to date. While the Court recognizes that Plaintiff is at a disadvantage due to his pro se status 12 || and his incarceration, the test is not whether Plaintiff would benefit from the appointment of counsel. 13 || See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (“Most actions require development 14 || of further facts during litigation and a pro se litigant will seldom be in a position to investigate easily 15 the facts necessary to support the case.”) Circumstances common to most prisoners, such as lack of 16 || legal education and limited law library access, do not establish exceptional circumstances that would 17 || warrant a request for voluntary assistance of counsel. The test is whether exception circumstances 18 || exist and here, they do not. Plaintiffs refusal to participate in the takin of his deposition cannot be 19 || blamed on the lack of counsel. There is simply an insufficient showing that Plaintiff is unable to 20 || adequately litigate this action. Further, at this stage of the proceedings, the Court cannot determine 21 || whether Plaintiff is likely to succeed on the merits of his claims. Accordingly, Plaintiff's second 22 || motion for appointment of counsel is be denied, without prejudice. 23 24 IT IS SO ORDERED. A (re 25 pated: _ February 1, 2022 OF 26 UNITED STATES MAGISTRATE JUDGE 27 28