(PC) Beavers v. Hosey ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GARY LEE BEAVERS, Case No. 1:21-cv-650-HBK (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION TO APPOINT COUNSEL 13 v. (Doc. No. 10) 14 FNU HOSEY, ET. AL., 15 Defendants. 16 17 Pending before the Court is Plaintiff’s motion to appoint counsel, filed on September 7, 18 2021. (Doc. No. 10). Plaintiff Gary Lee Beavers initiated this action proceeding pro se by filing 19 a 42 U.S.C § 1983 complaint as a prisoner within the CDCR on April 21, 2021. (Doc No. 1). 20 The Court granted Plaintiff’s motion to proceed in forma pauperis. (Doc. No. 6). A screening 21 order is due under § 1915 on the complaint. 22 Plaintiff seeks appointment of counsel for litany of reasons. (See generally Doc. No. 10). 23 Plaintiff states he has no legal education, that his case is complex, and he recognizes the action 24 involves different defendants and different claims: a failure to protect claim, a due process claim 25 stemming from prison officials’ rules that allow inmates and officers to steal property from 26 helpless inmates, and deliberate indifference to a serious medical condition medical claim. (Id. at 27 1). Plaintiff also states that his case will require expert testimony and involve conflicting 28 testimony. (Id.). Additionally, Plaintiff submits that due to the Covid-19 pandemic, he may be 1 precluded access to the prison law library due to lock-down. (Id.). 2 The United States Constitution does not require appointment of counsel in civil cases. See 3 Lewis v. Casey, 518 U.S. 343, 354 (1996) (explaining Bounds v. Smith, 430 U.S. at 817, did not 4 create a right to appointment of counsel in civil cases). Under 28 U.S.C. § 1915, this court has 5 discretionary authority to appoint counsel for an indigent to commence, prosecute, or defend a 6 civil action. See 28 U.S.C. § 1915(e)(1) (stating the court has authority to appoint counsel for 7 people unable to afford counsel); see also United States v. McQuade, 519 F.2d 1180 (9th Cir. 8 1978) (addressing relevant standard of review for motions to appoint counsel in civil cases) (other 9 citations omitted). However, motions to appoint counsel in civil cases are granted only in 10 “exceptional circumstances.” Id. at 1181. The court may consider many factors to determine if 11 exceptional circumstances warrant appointment of counsel including, but not limited to, proof of 12 indigence, the likelihood of success on the merits, and the ability of the plaintiff to articulate his 13 or her claims pro se in light of the complexity of the legal issues involved. Id.; see also Rand v. 14 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds on reh’g en 15 banc, 154 F.2d 952 (9th Cir. 1998). 16 Here, Plaintiff has not met his “burden of demonstrating exceptional circumstances.” 17 Jones v. Chen, 2014 WL 12684497, at *1 (E.D. Cal. Jan. 14, 2014). As noted above, the case 18 remains in the initial stages of litigation and a screening order is due on the Complaint. (Supra at 19 1). The issues Plaintiff presents to justify appointment of counsel are similar obstacles all 20 prisoner plaintiffs pursuing § 1983 claims face. Contrary to Plaintiff’s assertion, the Court does 21 not find the issues are “so complex that due process violations will occur absent the presence of 22 counsel.” Bonin v. Vasquez, 999 F.2d 425, 428-29 (9th Cir. 1993). Plaintiff has not showed 23 exceptional circumstances warrant appointment of counsel at this stage of the proceedings. 24 Should this case progress and plaintiff’s circumstances change so that he is able to demonstrate 25 exceptional circumstances, he may renew his motion for appointment at counsel at that time. 26 Accordingly, it is ORDERED: 27 Plaintiff’s motion to appoint counsel (Doc. No. 10) is DENIED. 28 1 4 Dated: _ September 10, 2021 ooo. Th. Bares Hack HELENA M. BARCH-KUCHTA 3 UNITED STATES MAGISTRATE JUDGE 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