(PC) Hardy v. Santoro ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KRISTIN HARDY, Case No. 1:21-cv-00327-ADA-EPG (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION 13 FOR APPOINTMENT OF PRO BONO v. COUNSEL, WITHOUT PREJUDICE 14 R. MORENO, et al., (ECF No. 76) 15 Defendants. 16 17 18 Kristin Hardy (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in 19 this civil rights action filed pursuant to 42 U.S.C. § 1983. 20 On September 2, 2022, Plaintiff filed a motion for appointment of pro bono counsel. 21 (ECF No. 76). Plaintiff asks for appointment of counsel because he is not able to conduct his 22 own investigation due to his confinement; because discovery is likely to yield little evidence 23 needed to prove his claim; because counsel may be able to figure out why defendant Ceballos has 24 refused to appear; and because counsel could help Plaintiff handle objections and other matters 25 related to his deposition. Plaintiff also argues that Federal Rule of Civil Procedure 26(c) gives the 26 Court authority to appoint counsel because it allows the Court to designate persons to be 27 \\\ 28 \\\ 1 present at depositions.1 2 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 3 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds, 154 F.3d 952 4 (9th Cir. 1998), and the Court cannot require an attorney to represent Plaintiff pursuant to 28 5 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa, 6 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the Court may request 7 the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. 8 Without a reasonable method of securing and compensating counsel, the Court will seek 9 volunteer counsel only in the most serious and exceptional cases. In determining whether 10 “exceptional circumstances exist, a district court must evaluate both the likelihood of success of 11 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 12 complexity of the legal issues involved.” Id. (citation and internal quotation marks omitted). 13 The Court will not order appointment of pro bono counsel at this time. The Court has 14 reviewed the record in this case, and at this time the Court is unable to make a determination that 15 Plaintiff is likely to succeed on the merits of his claims. Moreover, it appears that Plaintiff can 16 adequately articulate his claims. As to Plaintiff’s argument that Federal Rule of Civil Procedure 17 26(c)(1)(E) gives the Court authority to appoint counsel to represent him in this case, Plaintiff 18 cites to no authority in support of this argument, and the Court is aware of none. 19 Plaintiff is advised that he is not precluded from renewing his motion for appointment of 20 pro bono counsel at a later stage of the proceedings. 21 \\\ 22 \\\ 23 \\\ 24 \\\ 25 \\\ 26 1 Federal Rule of Civil Procedure 26(c)(1)(E) states that “[t]he court may, for good cause, issue an order to 27 protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense” by “designating the persons who may be present while the discovery is conducted.” 28 nen nn eee IEE II RII IEE IRD IEE ED 1 For the foregoing reasons, IT IS ORDERED that Plaintiff's motion for appointment of pro 2 || bono counsel is DENIED without prejudice.” 3 4 IT IS SO ORDERED. 5 Dated: _ September 6, 2022 [spe ey 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2 Plaintiff also asks the Court to stay his deposition in order to give counsel time to review the case. As the Court is denying Plaintiff’s request for counsel, this request is also DENIED. However, the Court notes that, based 27 | on the assertions in Defendants’ motion to compel Plaintiff’s deposition, no deposition is scheduled at this time. 38 (ECE No. 74-2, p. 3).