(PC) Chavez v. Ramirez ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PABLO CHAVEZ, Case No. 1:20-cv-01269-HBK (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION TO APPOINT COUNSEL 13 v. (Doc. No. 15) 14 RAMIREZ, et al., ORDER SUA SPONTE GRANTING 15 Defendants. PLAINTIFF AN EXTENSION TO FILE OBJECTIONS 16 JUNE 20, 2023, DEADLINE 17 18 Pending before the Court is Plaintiff’s motion to appoint counsel. (Doc. No. 15). 19 Plaintiff, a former state prisoner, is proceeding pro se on his initial complaint. (Doc. No. 1). The 20 Court granted Plaintiff’s application to proceed in this action in forma pauperis in this action. 21 (Doc. No. 8). Plaintiff seeks appointment counsel because “he does not now [sic] what to do in 22 these matters.” (Doc. No. 15 at 1). Plaintiff also requests to re-open “Chavez v. KCJBM,” 23 “Chavez v. Cal Fire,” and “Chavez v. KCJ” and seeks appointment of counsel to assist him in re- 24 opening the three cases. 25 Request for Appointment of Counsel in the Instant Action 26 The United States Constitution does not require appointment of counsel in civil cases. See 27 Lewis v. Casey, 518 U.S. 343, 354 (1996) (explaining Bounds v. Smith, 430 U.S. at 817, did not 28 create a right to appointment of counsel in civil cases). Under 28 U.S.C. § 1915, this court has 1 discretionary authority to appoint counsel for an indigent to commence, prosecute, or defend a 2 civil action. See 28 U.S.C. § 1915(e)(1) (stating the court has authority to appoint counsel for 3 people unable to afford counsel); see also United States v. McQuade, 519 F.2d 1180 (9th Cir. 4 1978) (addressing relevant standard of review for motions to appoint counsel in civil cases) (other 5 citations omitted). However, motions to appoint counsel in civil cases are granted only in 6 “exceptional circumstances.” Id. at 1181. The court may consider many factors to determine if 7 exceptional circumstances warrant appointment of counsel including, but not limited to, proof of 8 indigence, the likelihood of success on the merits, and the ability of the plaintiff to articulate his 9 or her claims pro se in light of the complexity of the legal issues involved. Id.; see also Rand v. 10 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds on reh’g en 11 banc, 154 F.2d 952 (9th Cir. 1998). 12 Plaintiff has not met his “burden of demonstrating exceptional circumstances.” Jones v. 13 Chen, 2014 WL 12684497, at *1 (E.D. Cal. Jan. 14, 2014). Plaintiff requests appointment of 14 counsel because he “he does not now [sic] what to do in these matters.” (Doc. No. 15 at 1). The 15 Court construes Plaintiff’s reasoning as a purported lack of knowledge on the law as it relates to 16 his case as well as a general lack of knowledge as to how to litigate a case. There are normal 17 challenges faced by pro se litigants and do not warrant appointment of counsel. Siglar v. 18 Hopkins, 822 F. App'x 610, 612 (9th Cir. 2020) (denying appointment of counsel because the 19 plaintiff’s “circumstances were not exceptionally different from the majority of the challenges 20 faced by pro se litigants.”). The undersigned acknowledges that while the assistance of counsel 21 may be helpful, the “relevant consideration is not one of convenience” but rather exceptionalness. 22 Howard v. Hedgpeth, 2010 WL 1641087, at *2 (E.D. Cal. Apr. 20, 2010). 23 Finally, Plaintiff explains that while he now has an address for mailing, he was previously 24 homeless and did not receive mail during the time he was homeless. Liberally construed, Plaintiff 25 is also requesting appointment of counsel because he was homeless. While the Court is 26 sympathetic to Plaintiff’s previous homelessness, the Court does not find that Plaintiff’s past 27 homelessness is an exceptional circumstance that warrants appointment of counsel. Van Buren v. 28 Gee, 2023 WL 2621345, at *2 (N.D. Cal. Mar. 23, 2023) (denying appointment of counsel 1 because plaintiff is temporarily homeless); Webb v. NaphCare, Inc., 2022 WL 2192977, at *2 2 (W.D. Wash. Jun. 16, 2022) (denying appointment of counsel, among other reasons, because 3 plaintiff is homeless, unemployed, and indigent); Mascorro v. City of San Diego, 2021 WL 4 5827110, at *2 (S.D. Cal. Dec. 8, 2021) (denying motion for reconsideration for appointment of 5 counsel because plaintiff is homeless). Finally, on April 17, 2023, the Court screened Plaintiff’s 6 Complaint and found it did not allege a cognizable claim. (Doc. No. 11). Thus, Plaintiff cannot 7 demonstrate “the likelihood of success on the merits” necessary to warrant appointment of 8 counsel. United States v. McQuade, 519 F.2d at 1181. 9 As a precaution, the Court advises Plaintiff that on May 22, 2023, the undersigned issued 10 Findings and Recommendations to dismiss this action because Plaintiff had failed to timely 11 respond to the Court’s April 17, 2022 Screening Order. (See Doc. Nos. 11, 13). Plaintiff was 12 afforded fourteen days to file objections to the May 22, 2023, Findings and Recommendations. 13 (Doc. No. 13 at 5). Instead of filing Objections, Plaintiff moved for appointment of counsel. Due 14 to Plaintiff’s pro se status, the Court sua sponte will grant Plaintiff an extension of time, until 15 June 20, 2023, to file objections to the May 22, 2023, Findings and Recommendations, after 16 which time the May 22, 2023, Findings and Recommendations be deemed submitted for 17 consideration by the district court based on the record. 18 Cases: “Chavez v. KCJBM,” “Chavez v. Cal Fire,” and “Chavez v. KCJ” 19 Plaintiff also requests appointment of counsel to assist with reopening three cases: 20 “Chavez v. KCJBM,” “Chavez v. Cal Fire,” and “Chavez v. KCJ.” Plaintiff explains that he does 21 not have the case numbers for the cases because he was homeless and did not receive mail. 22 Although Plaintiff does not identify the case numbers, a review of the Court’s dockets reveals the 23 following cases filed by Plaintiff in this Court: Chavez v. Cal-Fire et al., Case No. 1:20-cv- 24 00801-JLT-HBK (E.D. Cal. Jun. 8, 2020) and Chavez v. Kings County, Case No. 1-20-cv-00503- 25 JLT-HBK (E.D. Cal. Apr. 8, 2020). If Plaintiff wishes to reopen these cases, he must file a 26 motion, pursuant to Rule 60 of the Federal Rules of Civil Procedure, in each case. See Fed. R. 27 Civ. P. 60. The Court cannot appoint him counsel in this case to assist Plaintiff with the 28 reopening of his other cases. 1 Accordingly, it is ORDERED: 2 1. Plaintiff's motion for appointment of counsel (Doc. No. 15) is DENIED. 3 2. The Court sua sponte grants Plaintiff an extension of time, until June 20, 2023, to file 4 objections to the May 22, 2023, Findings and Recommendations. 5 6 Dated: _ June 6, 2023 ooo. Th. Bareh Hack 7 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28