(PC) Rood v. Burden ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 COLTON JAMES ROOD, ) Case No.: 1:20-cv-00315-AWI-BAK (SAB) (PC) ) 12 Plaintiff, ) ) ORDER DENYING PLAINTIFF’S MOTION FOR 13 v. ) APPOINTMENT OF COUNSEL, WITHOUT PREJUDICE 14 BURDEN, et al., ) ) (ECF No. 39) 15 Defendants. ) ) 16 ) 17 Plaintiff Colton James Rood is proceeding pro se and in forma pauperis in this civil rights 18 action pursuant to 42 U.S.C. § 1983. 19 Currently before the Court is Plaintiff’s motion for appointment of counsel, filed February 18, 20 2022. Plaintiff asks for appointment of counsel because he is unable to afford counsel; his 21 imprisonment limits his ability to litigate the action; a trial is likely to involve conflicting testimony; 22 and he has been unable to obtain counsel on his own. (ECF No. 39.) 23 There is no constitutional right to appointed counsel in this action, Rand v. Rowland, 113 F.3d 24 1520, 1525 (9th Cir. 1997), and the Court cannot require any attorney to represent plaintiff pursuant to 25 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa, 490 26 U.S. 296, 298 (1989). However, in certain exceptional circumstances the Court may request the 27 voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. 28 1 Without a reasonable method of securing and compensating counsel, the Court will seek 2 || volunteer counsel only in the most serious and exceptional cases. In determining whether 3 || “exceptional circumstances exist, the district court must evaluate both the likelihood of success on thi 4 || merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of th 5 || legal issues involved.” Id. (internal quotation marks and citations omitted). 6 In the present case, the Court does not find the required exceptional circumstances. Even if it 7 || assumed that Plaintiff is not well versed in the law and that he has made serious allegations which, if 8 || proved, would entitle him to relief, his case is not exceptional. The Court is faced with similar cases 9 || almost daily. While the Court recognizes that Plaintiff is at a disadvantage due to his pro se status an 10 || his incarceration, the test is not whether Plaintiff would benefit from the appointment of counsel. See 11 || Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (“Most actions require development of 12 || further facts during litigation and a pro se litigant will seldom be in a position to investigate easily the 13 || facts necessary to support the case.”) The test is whether exception circumstances exist and here, the 14 do not. At this early stage of the litigation, the Court cannot find Plaintiff is likely to succeed on the 15 || merits, as the Court just issued the discovery and scheduling order on February 4, 2022. (ECF No. 16 || 39.) In addition, circumstances common to most prisoners, such as lack of legal education and limite 17 || law library access, do not establish exceptional circumstances that would warrant a request for 18 || voluntary assistance of counsel. Accordingly, Plaintiff's motion for the appointment of counsel is 19 || denied, without prejudice. 20 21 □□ IS SO ORDERED. Al (re 22 lI pated: _ February 22, 2022 OF 23 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28