(PC) Geren v. Fisher ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RANDY JAMES GEREN, ) Case No.: 1:19-cv-01662-DAD-SAB (PC) ) 12 Plaintiff, ) ) ORDER DENYING PLAINTIFF’S SECOND 13 v. ) REQUEST FOR APPOINTMENT OF COUNSEL, WITHOUT PREJUDICE 14 R. FISHER, et.al., ) ) [ECF No. 15] 15 Defendants. ) ) 16 ) ) 17 ) 18 Plaintiff Randy James Geren is appearing pro se in this civil rights action pursuant to 42 19 U.S.C. § 1983. 20 Currently before the Court is Plaintiff’s second request for appointment of counsel, filed 21 January 31, 2020. 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 The test for exceptional circumstances requires the Court to evaluate the Plaintiff’s likelihood 7 || of success on the merits and the ability of the Plaintiff to articulate his claims pro se in light of the 8 || complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 9 |) 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances common to most 10 || prisoners, such as lack of legal education and limited law library access, do not establish exceptional 11 || circumstances that would warrant a request for voluntary assistance of counsel. In the present case, 12 || the Court does not find extraordinary circumstances to warrant appointment of counsel. The Court 13 || previously screened Plaintiff's complaint and granted him leave to amend. Plaintiff filed a first 14 || amended complaint on January 31, 2020, which is pending screening by the Court. However, based 15 on acursory review of the first amended complaint, the Court does not find the required exceptional 16 || circumstances. Although Plaintiff contends that he suffers from brain injury, Plaintiff demonstrates 17 || literacy and an ability to communicate through pleadings and motions to sufficiently articulate his 18 claims pro se. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (affirming denial of appointment 19 || of counsel where a plaintiff demonstrates ability to effectively present case). Asa result, the Court is 20 || precluded from making a finding that Plaintiff is likely to succeed on the merits. Accordingly, 21 |} Plaintiff's second motion for appointment of counsel will be denied without prejudice. 22 23 ||} IT IS SO ORDERED. A (re 24 || Dated: _ February 3, 2020 OF 25 UNITED STATES MAGISTRATE JUDGE 26 27 28