(PC) Simms v. Edwards ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DEJWAN SIMMS, Case No. 1:22-cv-00028-BAM (PC) 12 Plaintiff, ORDER DENYING MOTION TO APPOINT COUNSEL 13 v. (ECF No. 44) 14 EDWARDS, 15 Defendant. 16 17 Plaintiff Dejwan Simms (“Plaintiff”) is a state prisoner proceeding pro se in this civil 18 rights action pursuant to 42 U.S.C. § 1983. This action proceeds against Defendant Edwards for 19 deliberate indifference to medical needs and for failure to protect, in violation of the Eighth 20 Amendment, related to the events surrounding Plaintiff’s transport back to North Kern State 21 Prison on October 16, 2020. All parties have consented to United States Magistrate Judge 22 jurisdiction. (ECF No. 43.) 23 Currently before the Court is Plaintiff’s motion to appoint counsel, filed October 4, 2023. 24 (ECF No. 44.) Plaintiff requests counsel to represent him pursuant to authority relevant to habeas 25 corpus proceedings. Plaintiff further states that he is unable to afford counsel, his imprisonment 26 will greatly limit his ability to litigate, his understanding and reasoning is sub par and will leave 27 him at an unsurmountable disadvantage at trial, the issues involved in this case are complex and 28 will require research and investigation, a trial would need investigation out of Plaintiff’s realm, 1 and Plaintiff has limited access to the law library and someone to help guide him. (Id.) 2 Defendant filed a response in opposition on October 5, 2023. (ECF No. 45.) The Court finds a 3 reply from Plaintiff is unnecessary, and the motion is deemed submitted. Local Rule 230(l). 4 First, Plaintiff is informed that the filing fee has been paid and Plaintiff is not proceeding 5 in forma pauperis in this action. The Court is not aware of any authority that would allow the 6 appointment of counsel for a litigant in a civil action who is not proceeding in forma pauperis. 7 Even if Plaintiff were proceeding in forma pauperis in this action, Plaintiff is informed 8 that he is proceeding in a civil rights action pursuant to 42 U.S.C § 1983, not a habeas corpus 9 proceeding. Therefore, Plaintiff does not have a constitutional right to appointed counsel in this 10 action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on other grounds, 11 154 F.3d 952, 954 n.1 (9th Cir. 1998), and the court cannot require an attorney to represent 12 plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 13 490 U.S. 296, 298 (1989). In certain exceptional circumstances the court may request the 14 voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. 15 Without a reasonable method of securing and compensating counsel, the Court will seek 16 volunteer counsel only in the most serious and exceptional cases. In determining whether 17 “exceptional circumstances exist, a district court must evaluate both the likelihood of success on 18 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 19 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 20 The Court has considered Plaintiff’s request, but does not find the required exceptional 21 circumstances. Even if it is assumed that Plaintiff has made serious allegations which, if proved, 22 would entitle him to relief, his case is not exceptional. This Court is faced with similar cases filed 23 almost daily by prisoners who are proceeding pro se who must conduct research and investigation 24 with limited access to a law library. These plaintiffs also must litigate their cases without the 25 assistance of counsel. 26 In addition, based on a review of the record in this case, the Court does not find that 27 Plaintiff cannot adequately articulate his claims. Plaintiff is able to prepare and file documents 28 clearly setting forth his contentions, without assistance from counsel. Furthermore, although the 1 Court screened the complaint and found that it stated a cognizable claim that is proceeding in this 2 action, this does not necessarily indicate a likelihood of success on the merits. Defendant’s 3 motion for summary judgment on the grounds that Plaintiff failed to exhaust his administrative 4 remedies is pending before the Court, which, if granted, would result in dismissal of Plaintiff’s 5 action. 6 Accordingly, Plaintiff’s motion to appoint counsel, (ECF No. 44), is HEREBY DENIED. 7 IT IS SO ORDERED. 8 9 Dated: October 10, 2023 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28