(PC) Lal v. United States of America ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 AZHAR LAL, No. 2:20-cv-0349 JAM DB P 11 Plaintiff, 12 v. ORDER 13 UNITED STATES OF AMERICA, et al., 14 Defendants. 15 16 Plaintiff is a state prisoner proceeding pro se with a civil rights action. Presently before 17 the court is plaintiff’s motion to appoint counsel. (ECF No. 19.) 18 In support of his motion to appoint counsel, plaintiff states that he cannot afford counsel, 19 he is a “layman at the law who did not even complete the 7th Grade,” he has sought help from 20 lawyers, he is diabetic, and he suffers from mental health issues. (ECF No. 19 at 1-2.) Plaintiff 21 also argues that the issues in his case are complex because they involve matters of international 22 law. (Id. at 8.) 23 The United States Supreme Court has ruled that district courts lack authority to require 24 counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 25 U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the 26 voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 27 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 28 //// 1 The test for exceptional circumstances requires the court to evaluate the plaintiff’s 2 likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in 3 light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 4 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances 5 common to most prisoners, such as lack of legal education and limited law library access, do not 6 establish exceptional circumstances that would warrant a request for voluntary assistance of 7 counsel. 8 In the present case, the court does not find the required exceptional circumstances. 9 Plaintiff devotes much of his motion to his argument that he qualifies as an individual with a 10 disability under the Americans with Disabilities Act (ADA) because he is an insulin dependent 11 diabetic. However, plaintiff’s disability status does not automatically require the appointment of 12 counsel. See Tunstall v. Bodenhamer, No. 2:16-cv-2665 JAM DB P, 2017 WL 5861377 at *1 13 (E.D. Cal. Nov. 29, 2017) (denying plaintiff’s request for counsel as a reasonable accommodation 14 under the ADA). 15 The court dismissed plaintiff’s original complaint for failure to comply with Rule 8 of the 16 Federal Rules of Civil Procedure and plaintiff has yet to file an amended complaint. Thus, the 17 court cannot ascertain the nature of plaintiff’s claim, much less evaluate his likelihood of success. 18 Plaintiff further argues that counsel should be appointed because this case turns on complex 19 issues of international law involving extradition1 treaties. (ECF No. 19 at 8.) However, without 20 an operative complaint, the court cannot determine whether the nature of his claim is so 21 complicated that counsel should be appointed. Based on the motions plaintiff has already filed it 22 appears that plaintiff is capable of articulating requests, citing relevant legal authority, and 23 responding to court orders. (See ECF Nos. 10, 12, 13, 15, 17.) Accordingly, the court will deny 24 plaintiff’s motion for the appointment of counsel without prejudice to its renewal at a later stage 25 of the proceedings. 26 1 To the extent that plaintiff’s claim in this action turns on issues of international law involving 27 extradition treaties, he is advised that such a claim is not likely to state a cognizable § 1983 claim. Ahmad v. Wigen, 910 F.2d 1063, 1065 (2d Cir. 1990) (The sole remedy from an extradition order 28 is a writ of habeas corpus); Barapind v. Enomoto, 400 F.3d 744, 748 (9th Cir. 2005). wOAIe 2 LUV IIT VAIN ER RUC OPI ete PY VI 1 Accordingly, IT IS HEREBY ORDERED that plaintiff's motion for the appointment of 2 | counsel (ECF No. 19) is denied without prejudice. 3 | Dated: September 21, 2020 4 5 6 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 DB:12 14 |) DB:1/Orders/Prisoner/Civil Rights/lal0349.31 15 16 17 18 19 20 21 22 23 24 25 26 27 28