(PC) Outhoummountry v. Pascua ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 STACEN OMAR OUTHOUMMOUNTRY, ) Case No.: 1:22-cv-00104-SAB (PC) ) 12 Plaintiff, ) ) ORDER DENYING PLAINTIFF’S MOTION FOR 13 v. ) APPOINTMENT OF COUNSEL, WITHOUT PREJUDICE 14 N. PASCUA, et al., ) ) (ECF No. 2) 15 Defendants. ) ) 16 ) 17 Plaintiff Stacen Omar Outhoummountry is proceeding pro se and in forma pauperis in this civil 18 rights action pursuant to 42 U.S.C. § 1983. 19 Plaintiff filed the instant complaint and a motion for appointment of counsel on December 22, 20 2021, in the United States District Court for the Northern District of California. On January 19, 2022, 21 the action was transferred to this Court. 22 Currently before the Court is Plaintiff’s motion for appointment of counsel. (ECF No. 2.) 23 Plaintiff asks for appointment of counsel because he is unable to afford counsel; his imprisonment 24 limits his ability to litigate the action; limited knowledge of the law and access to the law library; a 25 trial would likely involve conflicting testimony; the issues in this case are complex; and he has limited 26 education. (ECF No. 2.) 27 There is no constitutional right to appointed counsel in this action, Rand v. Rowland, 113 F.3d 28 1520, 1525 (9th Cir. 1997), and the Court cannot require any attorney to represent plaintiff pursuant to 1 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern District of □□□□□ □□□ 2 || U.S. 296, 298 (1989). However, in certain exceptional circumstances the Court may request the 3 || voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. 4 Without a reasonable method of securing and compensating counsel, the Court will seek 5 || volunteer counsel only in the most serious and exceptional cases. In determining whether 6 || “exceptional circumstances exist, the district court must evaluate both the likelihood of success on th 7 || merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of th 8 || legal issues involved.” Id. (internal quotation marks and citations omitted). 9 In the present case, the Court does not find the required exceptional circumstances. Even if it 10 || assumed that Plaintiff is not well versed in the law and that he has made serious allegations which, if 11 || proved, would entitle him to relief, his case is not exceptional. The Court is faced with similar cases 12 || almost daily. While the Court recognizes that Plaintiff is at a disadvantage due to his pro se status an 13 || his incarceration, the test is not whether Plaintiff would benefit from the appointment of counsel. See 14 || Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (“Most actions require development of 15 || further facts during litigation and a pro se litigant will seldom be in a position to investigate easily the 16 || facts necessary to support the case.”) The test is whether exception circumstances exist and here, the 17 || do not. At this early stage of the litigation, the Court cannot find Plaintiff is likely to succeed on the 18 || merits, as it has yet to screen Plaintiff's complaint. In addition, circumstances common to most 19 || prisoners, such as lack of legal education and limited law library access, do not establish exceptional 20 || circumstances that would warrant a request for voluntary assistance of counsel. Accordingly, 21 || Plaintiff's motion for the appointment of counsel is denied, without prejudice. 22 23 IT IS SO ORDERED. A (Fe 24 lI pated: _ January 25, 2022 OF 25 UNITED STATES MAGISTRATE JUDGE 26 27 28