(PC) Shepard v. Borum ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LAMONT SHEPARD, Case No. 1:18-cv-00277-DAD-HBK 12 Plaintiff, ORDER DENYING PLAINTIFFS MOTION TO APPOINT COUNSEL 13 v. (Doc. No. 82) 14 M. BORUM, J. ACEBEDO, 15 Defendant. 16 17 Plaintiff Lamont Shepard, a state prisoner proceeding pro se, initiated this action by filing 18 a civil rights complaint under 42 U.S.C. § 1983 on February 26, 2018. (Doc. No. 1). Pending 19 before the Court is Plaintiff’s motion to appoint counsel filed July 30, 2021. (Doc. No. 82). 20 The United States Constitution does not require appointment of counsel in civil cases. See 21 Lewis v. Casey, 518 U.S. 343, 354 (1996) (explaining Bounds v. Smith, 430 U.S. at 817, did not 22 create a right to appointment of counsel in civil cases). Under 28 U.S.C. § 1915, this Court has 23 discretionary authority to appoint counsel for an indigent to commence, prosecute, or defend a 24 civil action. See 28 U.S.C. § 1915(e)(1) (stating the court has authority to appoint counsel for 25 people unable to afford counsel); see also United States v. McQuade, 519 F.2d 1180 (9th Cir. 26 1978) (addressing relevant standard of review for motions to appoint counsel in civil cases) (other 27 citations omitted). However, motions to appoint counsel in civil cases are granted only in 28 “exceptional circumstances.” Id. at 1181. The court may consider many factors to determine if 1 | exceptional circumstances warrant appointment of counsel including, but not limited to, proof of 2 | indigence, the likelihood of success on the merits, and the ability of the plaintiff to articulate his 3 | or her claims pro se in light of the complexity of the legal issues involved. Jd.; see also Rand v. 4 | Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds on reh’g en 5 || banc, 154 F.2d 952 (9th Cir. 1998). 6 Plaintiff states that he requires appointment of counsel for the following reasons: it is 7 | unfair that Defendants have counsel and Plaintiff does not, Plaintiff is indigent, Plaintiff lacks 8 | legal expertise, Plaintiff has limited access to the law library, and the issues in this case are 9 | complex, necessitating the presentation of evidence and cross examination of witnesses at trial. 10 | (Doc. No. 82 at 1). Plaintiff has not met his “burden of demonstrating exceptional 11 | circumstances.” Jones v. Chen, 2014 WL 12684497, at *1 (E.D. Cal. Jan. 14, 2014). 12 Plaintiffs indigence does not qualify “as an exceptional circumstance in a prisoner civil 13 | rights case.” Montano v. Solomon, 2010 WL 24033839, at *2 (E.D. Cal. June 11, 2010); Callender 14 | v. Ramm, 2018 WL 6448536, at *3 (E.D. Cal. Dec. 10, 2018). Despite Plaintiff’s pro se and 15 | incarcerated status, he faces the same obstacles all pro se prisoners face, such as limited access to 16 | the law library and limited legal knowledge. Challenges preparing for trial “are ordinary for 17 | prisoners pursuing civil rights claim” and cannot form the basis for appointment of counsel. 18 || Courtney v. Kandel, 2020 WL 1432991, at *1 (E.D. Cal. Mar. 24, 2020). Contrary to Plaintiffs 19 | assertion, the Court does not find the issues are complex that due process violations will occur 20 | absent the presence of counsel.” Bonin v. Vasquez, 999 F.2d 425, 428-29 (9th Cir. 1993). From 21 | the pleadings filed in this case, Plaintiff has demonstrated an ability to prosecute this case pro se. 22 Accordingly, it is ORDERED: 23 Plaintiff's motion to appoint counsel (Doc. No. 82) is DENIED. 24 °° | Dated: _ August 2, 2021 Mihaw. Wh. foareh fackte 6 HELENA M. BARCH-KUCHTA 4 UNITED STATES MAGISTRATE JUDGE 28