(PC) Norris v. Youngblood ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 URIE NORRIS, ) Case No.: 1:21-cv-00704-SAB (PC) ) 12 Plaintiff, ) ) ORDER DENYING PLAINTIFF’S MOTION 13 v. ) FOR CONTINUANCE AND APPOINTMENT OF COUNSEL 14 DONNY YOUNGBLOOD, et al., ) ) (ECF No. 20) 15 Defendants. ) ) 16 ) 17 Plaintiff Urie Norris is proceeding pro se and in forma pauperis in this civil rights action 18 pursuant to 42 U.S.C. § 1983. 19 Currently before the Court is Plaintiff’s motion for a continuance and appointment of counsel, 20 filed September 24, 2021, self-dated by Plaintiff on September 15, 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 the 4 merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the 5 legal issues involved.” Id. (internal quotation marks and citations omitted). 6 In the present case, the Court does not find the required exceptional circumstances. Even if it 7 assumed that plaintiff is not well versed in the law and that he has made serious allegations which, if 8 proved, would entitle him to relief, his case is not exceptional. The Court is faced with similar cases 9 almost daily. While the Court recognizes that Plaintiff is at a disadvantage due to his pro se status and 10 his incarceration, the test is not whether Plaintiff would benefit from the appointment of counsel. See 11 Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (“Most actions require development of 12 further facts during litigation and a pro se litigant will seldom be in a position to investigate easily the 13 facts necessary to support the case.”) Circumstances common to most prisoners, such as lack of legal 14 education and limited law library access, do not establish exceptional circumstances that would 15 warrant a request for voluntary assistance of counsel. The test is whether exception circumstances 16 exist and here, they do not. There is simply an insufficient showing that Plaintiff is unable to 17 adequately litigate this action. Accordingly, Plaintiff’s motion for appointment of counsel shall be 18 denied, without prejudice. 19 Plaintiff also seeks a continuance in order to file an amended complaint and states that the 20 motion not be considered as his amended complaint. (ECF No. 20.) Inasmuch as Plaintiff has 21 submitted an amended complaint which was filed on September 24, 2021, (self-dated by Plaintiff three 22 days after the motion for a continuance on September 18, 2021), Plaintiff’s request for a continuance 23 to do so is denied as moot. 24 /// 25 /// 26 /// 27 /// 28 /// 1 Accordingly, it is HEREBY ORDERED that: 2 1. Plaintiff's motion for a continuance is denied as moot; and 3 2. Plaintiff's motion for appointment of counsel is denied, without prejudice. 4 5 IT IS SO ORDERED. A (Fe 6 |! Dated: _ September 28, 2021 OF 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28