(PC) Wheatley v. Dominguez ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RICARDO C. WHEATLEY, JR., Case No. 1:20-cv-00481-BAK (SAB) (PC) 12 Plaintiff, ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL 13 v. 14 SERGEANT D. DOMINGUEZ, et al., (ECF No. 17) 15 Defendants. 16 17 Plaintiff Ricardo C. Wheatley, Jr., is a state prisoner proceeding pro se and in forma 18 pauperis in this civil rights action filed under 42 U.S.C. § 1983. On August 18, 2022, Plaintiff 19 filed a motion for the appointment of counsel. (ECF No 17.) As grounds, Plaintiff states that he 20 cannot afford to hire counsel; the issues in this case are complex; because he is in a mental 21 hospital, he has limited access to the law library; and he has contacted two attorneys but was 22 unable to obtain representation. (Id.) 23 Plaintiff does not have a constitutional right to appointed counsel in this action. Rand v. 24 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997). The district courts lack authority to require 25 counsel to represent indigent prisoners in section 1983 cases. Mallard v. U.S. Dist. Ct. for the S. 26 Dist. of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances, the 27 court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 28 F.3d at 1525. 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 4 | onthe merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 5 | complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 6 The Court does not find that this case presents the required exceptional circumstances. 7 | Even if it assumed that Plaintiff is not well-versed in the law and that he has made serious 8 | allegations which, if proved, would entitle him to relief, this case is not exceptional. The Court is 9 | faced with similar cases almost daily. While the Court recognizes that Plaintiff is at a 10 | disadvantage due to his pro se status and her incarceration, the test is not whether Plaintiff would 11 | benefit from the appointment of counsel. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th 12 | Cir. 1986) (“Most actions require development of further facts during litigation and a pro se 13 | litigant will seldom be in a position to investigate easily the facts necessary to support the case.”) 14 | The test is whether exception circumstances exist, and here, they do not. 15 At this stage of the proceedings, the Court cannot determine whether Plaintiff is likely to 16 || proceed on the merits of his claim. Circumstances common to most prisoners, such as lack of 17 | legal education and limited law library access, do not establish exceptional circumstances that 18 | would warrant a request for voluntary assistance of counsel. Also, based on a review of the 19 | record in this case, the Court does not find that Plaintiff cannot adequately articulate his claims. 20 | Plaintiff is advised that in ruling on any matters, the Court will thoroughly review the record of 21 | the case and research the relevant legal standards. 22 Accordingly, it is HEREBY ORDERED that Plaintiffs motion for the appointment of 23 | counsel, (ECF No. 17), is DENIED without prejudice. 24 95 IT IS SO ORDERED. FA. ee 26 | Dated: _ August 22, 2022 UNITED STATES MAGISTRATE JUDGE 27 28