(PC)Figueroa v. Clark ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RUBEN FIGUEROA, Case No. 1:19-cv-00968-DAD-BAM (PC) 12 Plaintiff, ORDER DENYING MOTION TO APPOINT COUNSEL 13 v. (ECF No. 51) 14 CLARK, et al., 15 Defendants. 16 17 Plaintiff Ruben Figueroa (“Plaintiff”) is a state prisoner proceeding pro se and in forma 18 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on 19 Plaintiff’s first amended complaint against Defendants Baughman, Clark, Gallagher, Alfaro, 20 Goss, Juarez, Hence, and Llamas for failure to provide outside exercise in violation of the Eighth 21 Amendment and against Defendants Baughman, Clark, Goss, Hence, Gallagher, Llamas, and 22 Gamboa for violations of the Equal Protection Clause of the Fourteenth Amendment. 23 Currently before the Court is Plaintiff’s motion to appoint counsel, filed August 30, 2021. 24 (ECF No. 51.) In his motion, Plaintiff states that he is seeking appointment of counsel pursuant 25 to 18 U.S.C. § 3006(a)(2)(B).1 Plaintiff argues that appointment of counsel will not only benefit 26 1 It appears Plaintiff is referencing 18 U.S.C. § 3006A(a)(2)(B), which provides: “Whenever the 27 United States magistrate judge or the court determines that the interests of justice so require, representation may be provided for any financially eligible person who . . . is seeking relief under 28 Section 2241, 2254, or 2255 of title 28.” 1 Plaintiff and the Court-appointed attorney, but will also benefit the Court in allowing the issues to 2 be briefed in the best manner possible and in a much shorter time period, saving the Court time 3 and costs. Plaintiff further argues that it is his first 42 U.S.C. § 1983 case, and in attending a 4 settlement conference in this case he did not know how to correctly articulate his claims. Plaintiff 5 also states that he is currently in the ISUDT program, which takes a lot of time, and he is also 6 enrolled and finishing summer classes which keep him extremely busy with his essays and 7 homework assignments. The law library at his institution is also difficult to repeatedly get access 8 to due to the pandemic, particularly without a court deadline. Plaintiff is also no longer housed 9 with the inmate lawyer who was previously assisting him in this action. (Id.) 10 Defendants have not yet had an opportunity to file a response to Plaintiff’s motion, but the 11 Court finds a response unnecessary. The motion is deemed submitted. Local Rule 230(l). 12 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 13 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on other grounds, 154 F.3d 952, 954 14 n.1 (9th Cir. 1998), and the court cannot require an attorney to represent plaintiff pursuant to 28 15 U.S.C. § 1915(e)(1). Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296, 298 16 (1989). However, in certain exceptional circumstances the court may request the voluntary 17 assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. 18 Without a reasonable method of securing and compensating counsel, the Court will seek 19 volunteer counsel only in the most serious and exceptional cases. In determining whether 20 “exceptional circumstances exist, a district court must evaluate both the likelihood of success on 21 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 22 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 23 The Court has considered Plaintiff’s request, but does not find the required exceptional 24 circumstances. Even if it is assumed that Plaintiff is not well versed in the law and that he has 25 made serious allegations which, if proved, would entitle him to relief, his case is not exceptional. 26 This Court is faced with similar cases filed by prisoners who are proceeding pro se and with 27 limited access to the law library almost daily. Many of these prisoners are also bringing a civil 28 action for the first time. These litigants also must conduct legal research and litigate their cases 1 without the assistance of counsel. 2 Furthermore, at this stage in the proceedings, the Court cannot make a determination that 3 Plaintiff is likely to succeed on the merits. Although Plaintiff has stated some cognizable claims, 4 this does not mean he will prevail on the merits of his claims, and based on a review of the record 5 in this case, the Court does not find that Plaintiff cannot adequately articulate his claims. 6 With respect to 18 U.S.C. § 3006A, the Court notes that this statute applies to criminal 7 proceedings, not civil actions like the one filed here. 8 Finally, the Court notes that if Plaintiff continues to experience limited access to the law 9 library at his institution, he should seek appropriate extensions of time for any applicable 10 deadlines. 11 Accordingly, Plaintiff’s motion to appoint counsel, (ECF No. 51), is HEREBY DENIED, 12 without prejudice. 13 IT IS SO ORDERED. 14 15 Dated: August 31, 2021 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28