Wilson v. Tuolumne County ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER JOHN WILSON, Case No. 1:19-cv-01132-JLT-BAM 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR COUNSEL 13 v. (Doc. 57) 14 TUOLUMNE COUNTY, et al., 15 Defendants. 16 17 18 Plaintiff Christopher John Wilson is a state prisoner proceeding pro se and in forma 19 pauperis in this civil rights action under 42 U.S.C. § 1983. This action proceeds on Plaintiff’s 20 first amended complaint, filed on March 8, 2021, against Defendants Hankins and Durham for 21 excessive use of force in violation of the Fourth Amendment in connection with the alleged 22 handcuffing incident of June 9, 2029. Defendants Hankins and Durham have answered the 23 complaint and a scheduling order has issued. (See Docs. 48, 51, 53.) 24 On February 10, 2022, Plaintiff filed the instant motion requesting that the court appoint 25 him counsel in this action. (Doc. 57.) Plaintiff states that he is illiterate, with an eighth-grade 26 education, and has limited understanding. He also reports that inmates are on a complete 27 lockdown due to an outbreak of COVID-19, with movement only for food, and no access to 28 programs or the law library. (Id.) 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), rev’d in part on other grounds, 154 F.3d 952, 954 3 n.1 (9th Cir. 1998). The court cannot require an attorney to represent plaintiff pursuant to 28 4 U.S.C. §1915(e)(1). Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296, 298 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 7 reasonable method of securing and compensating counsel, the court will seek volunteer counsel 8 only in the most serious and exceptional cases. In determining whether “exceptional 9 circumstances exist, a district court must evaluate both the likelihood of success on the merits 10 [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the 11 legal issues involved.” Id. (internal quotation marks and citations omitted). 12 In the present case, the court does not find the required exceptional circumstances. Even if 13 it is assumed that Plaintiff is not well versed in the law and that he has made serious allegations 14 which, if proved, would entitle him to relief, his case is not exceptional. His limited education 15 and incarceration are not sufficient to make this case exceptional. This court is faced with similar 16 cases almost daily from incarcerated plaintiffs alleging excessive force. Further, at this early 17 stage in the proceedings, the court cannot make a determination that Plaintiff is likely to succeed 18 on the merits. There also is no indication from the record that Plaintiff is unable to articulate his 19 claims pro se despite his limited education. To the extent Plaintiff may require additional time 20 due to a facility lockdown or limited law library access, he may request extensions of any relevant 21 deadlines. Any such request must be supported by good cause. 22 Accordingly, Plaintiff’s motion for the appointment of counsel is HEREBY DENIED 23 without prejudice. 24 IT IS SO ORDERED. 25 26 Dated: February 14, 2022 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 27 28