(PC) Martinez v. Lawhorn ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RICARDO MARTINEZ, Case No. 1:21-cv-01602-JLT-CDB (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S SECOND MOTION TO APPOINT 13 v. COUNSEL 14 D. LAWHORN, et al., (Doc. 43) 15 Defendants. 16 17 Plaintiff Ricardo Martinez is a state prisoner proceeding pro se in this civil rights action 18 brought pursuant to 42 U.S.C. § 1983. 19 I. RELEVANT PROCEDURAL BACKGROUND 20 On May 30, 2023, Plaintiff filed Motion for Appointment of Counsel. (Doc. 29.) 21 On May 31, 2023, the Court issued its Order Denying Plaintiff’s Motion to Appoint 22 Counsel. (Doc. 34.) 23 On November 16, 2023, Plaintiff filed a second motion seeking the appointment of 24 counsel. (Doc. 43.) In his motion, Plaintiff states he is unable to afford counsel, has limited 25 knowledge of the law “with a TABE score 02.0,”1 that the issues involved in this action are 26 1 TABE stands for “Test of Adult Basic Education,” which measures an inmate’s ability to understand and 27 participate in the disciplinary process. See Cal. Code Regs., tit. 15, § 3000 (defining “effective communication”). When an inmate has a TABE score of 4.0 or below, prison staff must assess whether the 28 inmate requires a Staff Assistant. Id. 1 complex, and that because of conflicting testimony at trial, counsel would be better able “to 2 represent evidence and cross examine witnesses.” (Id.) 3 II. DISCUSSION 4 As previously explained, plaintiffs do not have a constitutional right to appointed counsel 5 in § 1983 actions. (See Doc. 34 at 2) (citing Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 6 1997), rev’d in part on other grounds, 154 F.3d 952, 954 n.1 (9th Cir. 1998)). Nor can the Court 7 require an attorney to represent a party under 28 U.S.C. § 1915(e)(1). See Mallard v. U.S. Dist. 8 Court, 490 U.S. 296, 304-05 (1989). However, in “exceptional circumstances,” the Court may 9 request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 10 1525. 11 Given that the Court has no reasonable method of securing and compensating counsel, the 12 Court will seek volunteer counsel only in extraordinary cases. In determining whether 13 “exceptional circumstances exist, a district court must evaluate both the likelihood of success on 14 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 15 complexity of the legal issues involved.” Rand, 113 F.3d at 1525 (internal quotation marks & 16 citations omitted). 17 Once again, the Court finds the required exceptional circumstances are absent here. Even 18 assuming Plaintiff is not well versed in the law and has made serious allegations that, if proven, 19 would entitle him to relief, Plaintiff’s case is not exceptional. The Court is faced with similar 20 cases almost daily. While the Court recognizes that Plaintiff is at a disadvantage due to his pro se 21 status and his incarceration, the test is not whether Plaintiff would benefit from the appointment 22 of counsel. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). The test is whether 23 exceptional circumstances exist; here, they do not. Indeed, circumstances common to most 24 prisoners, such as lack of legal education and limited law library access, do not establish 25 exceptional circumstances that would warrant a request for voluntary assistance of counsel. See, 26 e.g., Faultry v. Saechao, 2020 WL 2561596, at *2 (E.D. Cal., May 20, 2020) (stating that 27 “[c]ircumstances common to most prisoners, such as lack of legal education and limited law 28 library access, do not establish exceptional circumstances supporting appointment of counsel”); 1 see also Rand, 113 F.3d at 1525 (finding no abuse of discretion under 28 U.S.C. § 1915(e) when 2 district court denied appointment of counsel despite fact that pro se prisoner “may well have fared 3 better-particularly in the realm of discovery and the securing of expert testimony”). 4 Plaintiff is again advised the fact an attorney may be better able to perform research, 5 investigate, and represent a plaintiff does not change the analysis. There is little doubt most pro se 6 litigants “find it difficult to articulate [their] claims,” and would be better served with the 7 assistance of counsel. Wilborn, 789 F.2d at 1331; Courtney v. Kandel, No. 2:18-CV-2052-KJM- 8 DMC-P, 2020 WL 1432991, at *1 (E.D. Cal. Mar. 24, 2020) (challenges conducting discovery 9 and preparing for trial “are ordinary for prisoners pursuing civil rights claim” and cannot form the 10 basis for appointment of counsel). For this reason, in the absence of counsel, federal courts 11 employ procedures which are highly protective of a pro se litigant’s rights. See Haines v. Kerner, 12 404 U.S. 519, 520 (1972) (holding pro se complaint to less stringent standard) (per curiam). In 13 fact, where a plaintiff appears pro se in a civil rights case, the court must construe the pleadings 14 liberally and afford the plaintiff any benefit of the doubt. Karim-Panahi v. Los Angeles Police 15 Dep't, 839 F.2d 621, 623 (9th Cir. 1988). The rule of liberal construction is “particularly 16 important in civil rights cases.” Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). Thus, 17 where a pro se litigant can “articulate his claims” in light of the relative complexity of the matter, 18 the “exceptional circumstances” which might require the appointment of counsel do not exist. 19 Wilborn, 789 F.2d at 1331; accord Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). 20 Next, as previously found, Plaintiff’s low TABE score does not warrant the appointment 21 of counsel. Following screening of Plaintiff’s original complaint, the Court determined that 22 Plaintiff had plausibly alleged Eighth Amendment excessive force claims against Defendants 23 Lawhorn and Pfeiffer, as well as an Eighth Amendment failure to protect claim against Defendant 24 Mariscal. Thus, the Court finds Plaintiff can adequately articulate his claims regardless of his 25 TABE score. Wilborn, 789 F.2d at 1331; see also Ruiz v. Stane, No. 1:22-c-v-00236-HBK (PC), 26 2023 WL 3324750, at *1 (E.D. Cal. Apr. 10, 2023) (plaintiff’s claimed “TABE score of 0.00” did 27 not warrant appointment of counsel); Batton v. Zarate, No. 1:21-cv-00571-JLT (PC), 2021 WL 28 5301973, at *1 (E.D. Cal. Nov. 15, 2021) (order denying appointed counsel where plaintiff 1 | claimed TABE score of 2.1). 2 And again, indigency does not qualify as an exceptional circumstance. See Callender v. 3 | Ramm, No. 2:16-cv-0694 JAM AC P, 2018 WL 6448536, at *3 (E.D. Cal. Dec. 10, 2018) (“The 4 | law is clear: neither plaintiffs indigence, nor his lack of education, nor his lack of legal expertise 5 | warrant the appointment of counsel”). Moreover, and as previously found, because Plaintiff paid 6 | the $402 filing fee (see Docket Entry of 3/29/22 [receipt number CAE100050270)), he is not 7 | proceeding in forma pauperis (IFP), and the Court is not aware of any authority that would allow 8 | the appointment of counsel for a litigant in a civil action who is not proceeding IFP. 9 Finally, at this stage in the proceedings, the Court cannot determine whether Plaintiff is 10 | likely to succeed on the merits. A merits-based determination tests the veracity of the claims 11 | based upon evidence adduced during litigation. Here, Defendants have filed a motion for 12 | summary judgment alleging Plaintiff did not properly exhaust his claims against Defendants 13 | Pfeiffer and Mariscal. (Doc. 37.) Briefing on that motion is ongoing. Any motion for summary 14 || judgment concerning the merits of Plaintiff's claims will be filed at some future date following 15 | resolution of the exhaustion motion. In any event, the Court finds Plaintiff is able to articulate his 16 | claims. Plaintiff's complaint survived initial screening and the Court ordered service of the 17 | complaint. Plaintiff has engaged in discovery by his own admission and has recently filed a 18 | motion to compel. Finally, Plaintiff has prosecuted his case for two years. 19 In sum, Plaintiff faces challenges and circumstances faced by most pro se prisoner 20 | litigants. Nevertheless, those circumstances are not exceptional and do not warrant the 21 | appointment of counsel. Rand, 113 F.3d at 1525. 22 I. CONCLUSION AND ORDER 23 Accordingly, and for the reasons stated above, Plaintiff's second motion for the 24 | appointment of counsel (Doc. 43) is DENIED without prejudice. 25 | IT IS SO ORDERED. °° | Dated: _ November 20, 2023 | br Rr 27 UNITED STATES MAGISTRATE JUDGE 28