(PC) Wallace v. Sherman ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DARRYL WALLACE, Case No. 1:20-cv-00213-DAD-EPG (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION 13 FOR APPOINTMENT OF COUNSEL, v. WITHOUT PREJUDICE 14 STEWART SHERMAN, et al., (ECF NO. 10) 15 Defendants. 16 17 18 Darryl Wallace (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights action 19 filed pursuant to 42 U.S.C. § 1983. 20 On August 13, 2020, Plaintiff filed a motion for appointment of pro bono counsel. (ECF 21 No. 10). Plaintiff asks for appointment of counsel because he is unable to afford counsel; because 22 his incarceration will greatly limit his ability to litigate; because the issues involved in this case 23 are complex and will require significant research and investigation; because Plaintiff already had 24 limited access to the law library due to being in the SHU; and that Plaintiff’s access has been 25 completely cancelled to prevent the spread of the coronavirus; and because Plaintiff has “literally 26 no way to litigate without counsel.” 27 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 28 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds, 154 F.3d 952 wOoOw UV VE LONE SMU PO OP hee OY Ov! 1 | (9th Cir. 1998), and the Court cannot require an attorney to represent Plaintiff pursuant to 28 21 US.C. § 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa, 3 | 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the Court may request 4 | the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 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 of 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. (citation and internal quotation marks omitted). 10 The Court will not order appointment of pro bono counsel at this time. The Court has 11 || entered a findings and recommendations, recommending that Plaintiff's complaint be dismissed 12 | for prejudice for failure to state a claim. Thus, the Court finds that it is unlikely that Plaintiff will 13 || succeed on the merits. 14 Plaintiff is advised that he is not precluded from renewing his motion for appointment of 15 | pro bono counsel at a later stage of the proceedings. 16 For the foregoing reasons, IT IS ORDERED that Plaintiff's motion for appointment of pro 17 | bono counsel is DENIED without prejudice. 18 19 IT IS SO ORDERED. Dated: _ August 11, 2020 [Jee heey — UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28