(PC) Ritter v. McCabe ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RONALD RITTER, Case No. 1:19-cv-00324-DAD-HBK 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION TO APPOINT COUNSEL AND DIRECTING 13 v. CLERK TO UPDATE PLAINTIFF’S ADDRESS OF RECORD 14 CONALL MCCABE, ET. AL., (Doc. No. 38) 15 Defendants. 16 17 Pending before the Court is Plaintiff’s motion to appoint counsel, filed December 2, 18 2021.1 (Doc. No. 38). Plaintiff initiated this action by filing a pro se prisoner civil rights action 19 under 42 U.S.C. § 1983 on March 11, 2019. (Doc. No. 1). Plaintiff is proceeding on his first 20 amended complaint. (Doc. No. 10). 21 The United States Constitution does not require appointment of counsel in civil cases. See 22 Lewis v. Casey, 518 U.S. 343, 354 (1996) (explaining Bounds v. Smith, 430 U.S. at 817, did not 23 create a right to appointment of counsel in civil cases). Under 28 U.S.C. § 1915, this court has 24 discretionary authority to appoint counsel for an indigent to commence, prosecute, or defend a 25 civil action. See 28 U.S.C. § 1915(e)(1) (stating the court has authority to appoint counsel for 26 1 Filed with Plaintiff’s motion to appoint counsel is his notice of change of address. (See Doc. No. 38 at 27 3). The Court directs the Clerk to separate the notice of change of address from the instant motion, separately docket Plaintiff’s notice of change of address, and update Plaintiff’s address of record 28 accordingly. 1 people unable to afford counsel); see also United States v. McQuade, 519 F.2d 1180 (9th Cir. 2 1978) (addressing relevant standard of review for motions to appoint counsel in civil cases) (other 3 citations omitted). However, motions to appoint counsel in civil cases are granted only in 4 “exceptional circumstances.” Id. at 1181. The Court may consider many factors to determine if 5 exceptional circumstances warrant appointment of counsel including, but not limited to, proof of 6 indigence, the likelihood of success on the merits, and the ability of the plaintiff to articulate his 7 or her claims pro se in light of the complexity of the legal issues involved. Id.; see also Rand v. 8 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds on reh’g en 9 banc, 154 F.2d 952 (9th Cir. 1998). 10 Plaintiff has not met his “burden of demonstrating exceptional circumstances.” Jones v. 11 Chen, 2014 WL 12684497, at *1 (E.D. Cal. Jan. 14, 2014). Although Plaintiff is proceeding pro 12 se and is incarcerated, he faces the same obstacles all pro se prisoners face. Courtney v. Kandel, 13 2020 WL 1432991, at *1 (E.D. Cal. Mar. 24, 2020)(challenges conducting discovery and 14 preparing for trial “are ordinary for prisoners pursuing civil rights claim” and cannot form the 15 basis for appointment of counsel). Plaintiff’s indigence does not qualify “as an exceptional 16 circumstance in a prisoner civil rights case.” Montano v. Solomon, 2010 WL 2403389, at *2 17 (E.D. Cal. June 11, 2010); Callender v. Ramm, 2018 WL 6448536, at *3 (E.D. Cal. Dec. 10, 18 2018). Contrary to Plaintiff’s assertion, the court does not find the issues are “so complex that 19 due process violations will occur absent the presence of counsel.” Bonin v. Vasquez, 999 F.2d 20 425, 428–29 (9th Cir. 1993). 21 Plaintiff has capably filed motions and his first amended complaint has plausibly stated a 22 claim to survive an initial screening. (See Doc. No. 14). Plaintiff has not showed exceptional 23 circumstances warrant appointment of counsel at this stage of the proceedings. Should this case 24 progress and Plaintiff’s circumstances change so that he is able to demonstrate exceptional 25 circumstances, he may renew his motion for appointment at counsel at that time. 26 Accordingly, it is ORDERED: 27 1. Plaintiff’s motion to appoint counsel (Doc. No. 38) is DENIED, without prejudice. 28 2. The Clerk of Court shall separate Plaintiff’s notice of change of address (Doc. No. 38 1 | at 3) from the instant motion, separately file the notice of change of address, and update 2 | Plaintiff's address of record accordingly. 3 “| Dated: _ December 20. 2021 Wihaw. Th. PoareA fackt 5 HELENA M. BARCH-KUCHTA ‘ 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