(PC) Saldana v. Seibel ( 2023 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 ROBERT A. SALDANA, Case No. 1:23-cv-01002-BAM (PC) 10 Plaintiff, ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL 11 v. (ECF No. 2) 12 SEIBEL, et al., 13 Defendants. 14 15 Plaintiff Robert A. Saldana (“Plaintiff”) is a state prisoner proceeding pro se and in forma 16 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff’s complaint has not yet 17 been screened. 18 Currently before the Court is Plaintiff’s motion for appointment of counsel, filed July 5, 19 2023. (ECF No. 2.) Plaintiff requests appointment of counsel because he is unable to afford 20 counsel, the issues involved in this case are complex, and Plaintiff has limited access to the law 21 library and limited ability to investigate facts because he is in Restrictive Custody General 22 Population. Plaintiff’s family has attempted to contact attorneys to represent him but has not 23 heard from any of them. (Id.) 24 Plaintiff is informed that he does not have a constitutional right to appointed counsel in 25 this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on other 26 grounds, 154 F.3d 952, 954 n.1 (9th Cir. 1998), and the court cannot require an attorney to 27 represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. U.S. Dist. Court for the S. Dist. 28 of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the court may 1 request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 2 1525. 3 Without a reasonable method of securing and compensating counsel, the Court will seek 4 volunteer counsel only in the most serious and exceptional cases. In determining whether 5 “exceptional circumstances exist, a district court must evaluate both the likelihood of success on 6 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 7 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 8 The Court has considered Plaintiff’s request, but does not find the required exceptional 9 circumstances. Even if it is assumed that Plaintiff has made serious allegations which, if proved, 10 would entitle him to relief, his case is not exceptional. This Court is faced with similar cases filed 11 almost daily by prisoners who must obtain discovery and conduct legal research with limited 12 access to a prison law library and limited education in the law. These plaintiffs also must litigate 13 their cases without the assistance of counsel. 14 Furthermore, at this stage in the proceedings, the Court cannot make a determination that 15 Plaintiff is likely to succeed on the merits. Plaintiff’s complaint has not yet been screened, and 16 therefore the Court cannot evaluate the likelihood of success on the merits. Finally, based on a 17 review of the record in this case, the Court does not find that Plaintiff cannot adequately articulate 18 his claims. 19 Accordingly, Plaintiff’s motion to appoint counsel, (ECF No. 2), is HEREBY DENIED, 20 without prejudice. Plaintiff’s complaint will be screened in due course. 21 IT IS SO ORDERED. 22 23 Dated: July 6, 2023 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28