(PC) Steward v. Igbinosa ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DONNY STEWARD, Case No. 1:18-cv-00551-AWI-BAM (PC) 12 Plaintiff, ORDER DENYING MOTION TO APPOINT COUNSEL UNDER THE SIXTH 13 v. AMENDMENT 14 IGBINOSA, et al., (ECF No. 58) 15 Defendants. 16 17 Plaintiff Donny Steward (“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 Igbinosa, Faria, Lewis, Brightwell, Cerda, 20 and Hill for violations of the Eighth Amendment. 21 This action is currently stayed and has been referred for post-screening alternative dispute 22 resolution before Magistrate Judge Stanley A. Boone on November 9, 2021. (ECF No. 49.) 23 Currently before the Court is Plaintiff’s motion to appoint counsel under the Sixth 24 Amendment, filed September 27, 2021. (ECF No. 58.) In his motion, Plaintiff requests 25 appointment of counsel temporarily to represent him at the November 9, 2021 settlement 26 conference. Plaintiff argues that he has no professional experience or knowledge of how to 27 define and analyze what is fair or how to come to a good reduced award or the way to have the 28 Magistrate Judge have the Defendants pay all court fees and costs. Plaintiff further requests that 1 if the Court finds complex extraordinary circumstances that will require professional expertise in 2 civil procedures, that counsel stay on as his representation after the settlement conference. (Id.) 3 Defendants have not yet had an opportunity to respond to the motion, but the Court finds a 4 response unnecessary. The motion is deemed submitted. Local Rule 230(l). 5 Plaintiff is informed that to the extent he requests appointment of counsel pursuant to the 6 Sixth Amendment, the right to counsel provided by the Sixth Amendment is limited to criminal 7 actions, not civil actions such as the instant case. 8 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 9 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on other grounds, 154 F.3d 952, 954 10 n.1 (9th Cir. 1998), and the court cannot require an attorney to represent plaintiff pursuant to 28 11 U.S.C. § 1915(e)(1). Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296, 298 12 (1989). However, in certain exceptional circumstances the court may request the voluntary 13 assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. 14 Without a reasonable method of securing and compensating counsel, the Court will seek 15 volunteer counsel only in the most serious and exceptional cases. In determining whether 16 “exceptional circumstances exist, a district court must evaluate both the likelihood of success on 17 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 18 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 19 The Court has considered Plaintiff’s request, but does not find the required exceptional 20 circumstances. Even if it is assumed that Plaintiff is not well versed in the law and that he has 21 made serious allegations which, if proved, would entitle him to relief, his case is not exceptional. 22 This Court is faced with similar cases filed by prisoners who are proceeding pro se almost daily. 23 These litigants also must represent themselves at settlement conferences without the assistance of 24 counsel. 25 Furthermore, at this stage in the proceedings, the Court cannot make a determination that 26 Plaintiff is likely to succeed on the merits. Although Plaintiff’s complaint has been screened and 27 found to state some cognizable claims, this does not alone indicate a likelihood of success on the 28 merits. Finally, based on a review of the record in this case, the Court does not find that Plaintiff 1 cannot adequately articulate his claims. 2 Accordingly, Plaintiff’s motion to appoint counsel, (ECF No. 58), is HEREBY DENIED, 3 without prejudice. 4 IT IS SO ORDERED. 5 6 Dated: September 29, 2021 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28