(PC) Ramirez v. Pfeiffer ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 NARCISO RAMIREZ, No. 1:23-cv-01554-SAB (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL, 13 v. WITHOUT PREJUDICE 14 C. PFEIFFER, et al. (ECF No. 7) 15 Defendants. 16 17 Plaintiff is proceeding pro se and in forma pauperis in this action filed pursuant to 42 18 U.S.C. § 1983. 19 Currently before the Court is Plaintiff’s motion for appointment of counsel, filed 20 November 13, 2023. 21 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 22 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require any attorney to 23 represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for 24 the Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional 25 circumstances the court may request the voluntary assistance of counsel pursuant to section 26 1915(e)(1). Rand, 113 F.3d at 1525. 27 Without a reasonable method of securing and compensating counsel, the court will seek 28 volunteer counsel only in the most serious and exceptional cases. In determining whether ee IE OS OIE IDE OE III IEE ES IS) EES EO 1 | “exceptional circumstances exist, the district court must evaluate both the likelihood of success 2 | onthe merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 3 | complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 4 In the present case, the court does not find the required exceptional circumstances. Even 5 | if it assumed that plaintiff is not well versed in the law and that he has made serious allegations 6 | which, if proved, would entitle him to relief, his case is not exceptional. The Court is faced with 7 | similar cases almost daily. While the Court recognizes that Plaintiff is at a disadvantage due to 8 | his pro se status and his incarceration, the test is not whether Plaintiff would benefit from the 9 | appointment of counsel. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (“Most 10 | actions require development of further facts during litigation and a pro se litigant will seldom be 11 | ina position to investigate easily the facts necessary to support the case.”) Although Plaintiff 12 | contends that his primary language is Spanish and he is being assisted by two other inmates, such 13 || circumstances do not warrant assistance of counsel. the record reflects that Plaintiff is receiving 14 | assistance sufficient to allow him to prosecute this litigation, and he is able to articulate his 15 | claims, even if it is with the assistance of other inmates. The test is whether exception 16 | circumstances exist and here, they do not. In the present case, the Court has yet to screen 17 | Plaintiffs complaint pursuant to 28 U.S.C. 4 1915A, and based on a cursory review of the 18 | complaint, the Court does not find the required exceptional circumstances. In addition, the Court 19 | cannot make a finding that Plaintiff is likely to succeed on the merits. Accordingly, Plaintiffs 20 | motion for the appointment of counsel is denied, without prejudice.! 21 IT IS SO ORDERED. TA. ee 23 | Dated: _November 14, 2023 _ OO UNITED STATES MAGISTRATE JUDGE 24 25 26 ' To the extent Plaintiff seeks to amend the complaint, Plaintiff is advised that Federal Rule of Civil Procedure 15 27 provides: “A party may amend its pleading once as matter of course within: (A) 21 days after serving it; or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days 28 after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” Fed. R. Civ. P. 15(a)(1)(A), (B).