(PC) Holmes v. Sherman ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TERREL HOLMES, Case No. 1:20-cv-00737-ADA-HBK (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’s MOTION FOR APPOINTMENT OF COUNSEL 13 v. (Doc. No. 31) 14 M. MUELLER, 15 Defendant. 16 17 Pending before the Court is Plaintiff’s motion to appoint counsel. (Doc. No. 31). 18 Plaintiff, a prisoner, is proceeding pro se on his First Amended Civil Rights Complaint as 19 screened under 28 U.S.C. § 1915A. (Doc. No. 13, 16). The Court granted Plaintiff’s application 20 to proceed in this action in forma pauperis in this action. (Doc. No. 4). Plaintiff seeks 21 appointment counsel because he is indigent and has been unable to obtain a lawyer. (Doc. No. 22 31). 23 The United States Constitution does not require appointment of counsel in civil cases. See 24 Lewis v. Casey, 518 U.S. 343, 354 (1996) (explaining Bounds v. Smith, 430 U.S. at 817, did not 25 create a right to appointment of counsel in civil cases). Under 28 U.S.C. § 1915, this court has 26 discretionary authority to appoint counsel for an indigent to commence, prosecute, or defend a 27 civil action. See 28 U.S.C. § 1915(e)(1) (stating the court has authority to appoint counsel for 28 people unable to afford counsel); see also United States v. McQuade, 519 F.2d 1180 (9th Cir. 1 | 1978) (addressing relevant standard of review for motions to appoint counsel in civil cases) (other 2 | citations omitted). However, motions to appoint counsel in civil cases are granted only in 3 | “exceptional circumstances.” Jd. at 1181. The court may consider many factors to determine if 4 | exceptional circumstances warrant appointment of counsel including, but not limited to, proof of 5 || indigence, the likelihood of success on the merits, and the ability of the plaintiff to articulate his 6 | or her claims pro se in light of the complexity of the legal issues involved. Jd.; see also Rand v. 7 | Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds on reh’g en 8 | banc, 154 F.2d 952 (9th Cir. 1998). 9 Plaintiff has not met his “burden of demonstrating exceptional circumstances.” Jones v. 10 | Chen, 2014 WL 12684497, at *1 (E.D. Cal. Jan. 14, 2014). Plaintiff's indigence does not qualify 11 | “as an exceptional circumstance in a prisoner civil rights case.” Montano v. Solomon, 2010 WL 12 | 2403389, at *2 (E.D. Cal. June 11, 2010); Callender v. Ramm, 2018 WL 6448536, at *3 (E.D. 13 | Cal. Dec. 10, 2018). Plaintiffs inability to find counsel is not “a proper factor for the Court to 14 | consider in determining whether to request counsel.” Howard v. Hedgpeth, 2010 WL 1641087, at 15 | *2 (ED. Cal. Apr. 20, 2010). Further, the Court does not find the issues are “so complex that due 16 || process violations will occur absent the presence of counsel.” Bonin v. Vasquez, 999 F.2d 425, 17 | 428-29 (9th Cir. 1993). 18 | Dated: _ February 16, 2023 Mihaw. Wh. foareh Zaskth 20 HELENA M. BARCH-KUCHTA 1 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28