(PC) King v. Allison ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TERRANCE ALLEN KING, Case No. 1:23-cv-00681-JLT-BAM (PC) 12 Plaintiff, ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL 13 v. 14 ALLISON, et al., (ECF No. 27) 15 Defendants. 16 17 Plaintiff Terrance Allen King (“Plaintiff”) is a state prisoner proceeding pro se and in 18 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on 19 Plaintiff’s second amended complaint for Eighth Amendment claims against: (1) Defendant 20 Burns for the painful cuffing and refusal to loosen the cuffs on 1/7/23; (2) Defendants Burns and 21 Mumby for the force used against Plaintiff on 1/7/23 in the rotunda; (3) Defendant Burns for 22 deliberate indifference to medical care on 1/7/23; and (4) Defendants J. Ramirez, G. Sanchez, and 23 C. Patricio for failure to protect on 1/7/23. 24 Currently before the Court is Plaintiff’s renewed motion for appointment of counsel, filed 25 December 4, 2023. (ECF No. 27.) Defendants have not had the opportunity to file a response, 26 but the Court finds a response unnecessary. The motion is deemed submitted. Local Rule 230(l). 27 Plaintiff requests appointment of counsel because he has been transferred from CCI 28 Tehachapi, where the events at issue in this action occurred, to High Desert State Prison, 1 approximately 600 miles away. (ECF No. 27.) Plaintiff states that his transfer, in addition to his 2 current placement in punitive segregation, greatly limits his ability to conduct an investigation, 3 interview witnesses, or access the law library. Plaintiff cannot afford to hire an attorney, and the 4 issues in this case will likely involve conflicting testimony and complex issues. (Id.) 5 As Plaintiff was previously informed, he does not have a constitutional right to appointed 6 counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on 7 other grounds, 154 F.3d 952, 954 n.1 (9th Cir. 1998), and the court cannot require an attorney to 8 represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. U.S. Dist. Court for the S. Dist. 9 of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the court may 10 request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 11 1525. 12 Without a reasonable method of securing and compensating counsel, the Court will seek 13 volunteer counsel only in the most serious and exceptional cases. In determining whether 14 “exceptional circumstances exist, a district court must evaluate both the likelihood of success on 15 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 16 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 17 The Court has considered Plaintiff’s request, but does not find the required exceptional 18 circumstances. Even if it is assumed that Plaintiff is not well versed in the law and that he has 19 made serious allegations which, if proved, would entitle him to relief, his case is not exceptional. 20 This Court is faced with similar cases filed by prisoners who are proceeding pro se and in forma 21 pauperis almost daily. Many of these prisoners also have limited access to witnesses and 22 discovery after being transferred to other institutions or placed in administrative or punitive 23 segregation. These litigants also must conduct legal research and litigate their cases without the 24 assistance of counsel. 25 Furthermore, at this stage in the proceedings, the Court cannot make a determination that 26 Plaintiff is likely to succeed on the merits. Although the Court has found that Plaintiff may 27 proceed on cognizable claims, this does not mean that Plaintiff is likely to ultimately succeed on 28 the merits of those claims. Finally, based on a review of the record in this case, the Court does 1 not find that Plaintiff cannot adequately articulate his claims. 2 Accordingly, Plaintiff’s renewed motion for appointment of counsel, (ECF No. 27), is 3 HEREBY DENIED, without prejudice. 4 IT IS SO ORDERED. 5 6 Dated: December 5, 2023 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28