(PC) Taylor v. Commissioner of the California Department of Corrections and Rehabilitation ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 PRESTON TAYLOR, ) Case No.: 1:20-cv-00798-NONE-SAB (PC) ) 12 Plaintiff, ) ) ORDER DENYING PLAINTIFF’S MOTION FOR 13 v. ) APPOINTMENT OF COUNSEL, WITHOUT PREJUDICE 14 COMMISSIONER OF CALIFORNIA ) DEPARTMENT OF CORRECTIONS AND ) (ECF No. 32) 15 REHABILITATION, et al., ) ) 16 ) Defendants. ) 17 ) 18 Plaintiff Preston Taylor is proceeding pro se and in forma pauperis in this civil rights action 19 pursuant to 42 U.S.C. § 1983. 20 Currently before the Court is Plaintiff’s motion for appointment of counsel, filed April 1, 2021. 21 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 22 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require any attorney to represent 23 plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern 24 District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the court 25 may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 26 1525. 27 /// 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 Here, Plaintiff contends that the original complaint was prepared by a prisoner helper who ha: 7 recently transferred to a different prison, he is without formal education or legal training, unaware of 8 || his I/Q., and is borderline functionally illiterate. The Court does not find the required exceptional 9 || circumstances. Even if it assumed that Plaintiff is not well versed in the law and that he has made 10 || serious allegations which, if proved, would entitle him to relief, his case is not exceptional. The Cout 11 faced with similar cases almost daily. While the Court is sympathetic to Plaintiff's condition and 12 || incarceration, the test is not whether Plaintiff would benefit from the appointment of counsel. See 13 || Wilborn v. Escalderon, 789 F.2d at 1328, 1331 (9th Cir. 1986) (“Most actions require development o 14 || further facts during litigation and a pro se litigant will seldom be in a position to investigate easily the 15 || facts necessary to support the case.”) The test is whether exception circumstances exist and here, the: 16 not. This case is proceeding on Plaintiff's deliberate indifference claim, and after an unsuccessful 17 || settlement conference, discovery just began on February 19, 2021. Thus, at this juncture of the 18 || proceedings, the Court is precluded from making a finding that Plaintiff is likely to succeed on the 19 || merits. Further, there is no indication from the record that Plaintiff has been unable to adequately 20 || articulate claims and prosecute this action—whether alone or with inmate assistance. Indeed, 21 || Plaintiff's current motion is typewritten and coherent. Accordingly, Plaintiff's motion for the 22 || appointment of counsel is denied, without prejudice. 23 24 IS SO ORDERED. A (re 25 lI Dated: _ April 5, 2021 OF 26 UNITED STATES MAGISTRATE JUDGE 27 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28