(PC) Driver v. ADA 1824 Panels ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BILLY DRIVER, JR., Case No. 1:19-cv-01718-DAD-SAB (PC) 12 Plaintiff, ORDER DENYING, WITHOUT PREJUDICE, PLAINTIFF’S MOTION FOR 13 v. APPOINTMENT OF COUNSEL 14 ADA 1824 PANELS, et al., (ECF No. 14) 15 Defendants. 16 17 Plaintiff Billy Driver, Jr. is a state prisoner proceeding pro se in this civil rights action 18 pursuant to 42 U.S.C. § 1983. 19 Currently before the Court is Plaintiff’s motion for appointment of counsel, filed on 20 January 14, 2020. (ECF No. 14.) Plaintiff asserts that the Court should appoint counsel to 21 represent him in this case because he is mentally ill, his access to the prison law library is being 22 obstructed, and he will need the assistance of a lawyer at any jury trial in this case. 23 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 24 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require any attorney to 25 represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1), Mallard v. United States District Court for 26 the Southern District of Iowa, 490 U.S. 296, 298 (1989). Nevertheless, in certain exceptional 27 circumstances, the court may request the voluntary assistance of counsel pursuant to § 1915(e)(1). 28 Rand, 113 F.3d at 1525. 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. The Court has very limited 3 counsel to appoint in this Division, and therefore, applies the “exceptional circumstances” test. In 4 determining whether “exceptional circumstances exist, the district court must evaluate both the 5 likelihood of success on the merits [and] the ability of the [plaintiff] to articulate his claims pro se 6 in light of the complexity of the legal issues involved.” Id. (internal quotation marks and 7 citations omitted). “Neither of these considerations is dispositive and instead must be viewed 8 together.” Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). The burden of demonstrating 9 exceptional circumstances is on the plaintiff. Id. 10 The Court has considered Plaintiff’s request for appointed counsel, but does not find the 11 required exceptional circumstances. First, circumstances common to most prisoners, such as lack 12 of legal education, limited law library access, and lack of funds to hire counsel, do not alone 13 establish the exceptional circumstances that would warrant appointment of counsel. Second, 14 Plaintiff’s apprehension with pursuing this case on his own, while understandable, is not 15 sufficient grounds for appointing counsel. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th 16 Cir. 1986) (“Most actions require development of further facts during litigation and a pro se 17 litigant will seldom be in a position to investigate easily the facts necessary to support the case.”). 18 Third, a plaintiff that has an ability to reasonably articulate their claims is not entitled to 19 appointment of counsel, regardless of whether the plaintiff has mental health problems. See 20 Warren v. Harrison, 244 F. App’x 831, 832 (9th Cir. 2007) (holding that an inmate plaintiff who 21 had alleged mental illness did not qualify for appointed counsel because the plaintiff competently 22 presented his claims and attached three pertinent exhibits in response to a court order); Miller v. 23 McDaniel, 124 F. App’x 488, 490 (9th Cir. 2005) (holding that an inmate plaintiff with mental 24 health problems was not entitled to appointment of counsel because the plaintiff demonstrated an 25 ability to articulate his claims pro se). Here, as in the cases cited above, Plaintiff has shown an 26 ability to articulate his claims and litigate this action in spite of any mental health issues he has. 27 Further, the Court has reviewed Plaintiff’s complaint and finds that Plaintiff’s claims do not 28 appear to present novel or complex issues of substantive law. Finally, since the Court has not yet 1 | screened Plaintiff's complaint, the Court cannot evaluate Plaintiffs likelihood of success on the 2 | merits of his claims. 3 Accordingly, Plaintiff's motion for appointment of counsel, (ECF No. 14), is HEREBY 4 | DENIED, without prejudice. 5 6 IT IS SO ORDERED. F- Zl Se 7 | Dated: _January 27, 2020_ 3 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28