(PC) Stone v. Pfieffer ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ADAM JAY STONE, ) Case No. 1:21-cv-01461-DAD-SAB (PC) ) 12 Plaintiff, ) ) ORDER DENYING PLAINTIFF’S SECOND 13 v. ) MOTION FOR APPOINTMENT OF COUNSEL, WITHOUT PREJUDICE 14 C. PFIEFFER, ) ) (ECF No. 24) 15 Defendant. ) ) 16 ) 17 Plaintiff Adam Jay Stone is proceeding pro se and in forma pauperis in this civil rights action 18 pursuant to 42 U.S.C. § 1983. 19 Currently before the Court is Plaintiff’s second motion for appointment of counsel, filed 20 March 14, 2022. 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 represent 23 plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern 24 District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the Court 25 may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 26 1525. 27 /// 28 /// eee nn eee en nn nnn ne nnn en nnn nn nO ON IED RI 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 th 4 || merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the 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. Plaintiff contends that the merits of his case which involves a claim that he was 10 || subjected to excessive force warrants the appointment of counsel. However, the Court has yet to 11 || screen Plaintiff's complaint and based on a cursory review of the complaint, the Court does not find 12 || the required exceptional circumstances. While allegations of excessive force are certainly serious, 13 || such claim does not, alone, justify appointment of counsel. Although Plaintiff is at a disadvantage dv 14 || to his pro se status and his incarceration, the test is not whether Plaintiff would benefit from the 15 || appointment of counsel. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (“Most 16 || actions require development of further facts during litigation and a pro se litigant will seldom be in a 17 || position to investigate easily the facts necessary to support the case.”) Circumstances common to 18 || most prisoners, such as lack of legal education and limited law library access, do not establish 19 || exceptional circumstances that would warrant a request for voluntary assistance of counsel. The test 20 || whether exception circumstances exist and here, they do not. Accordingly, Plaintiffs second motion 21 || for the appointment of counsel is denied, without prejudice. 22 23 ||} ITIS SO ORDERED. A (re 24 |! Dated: _ March 15, 2022 OF 25 UNITED STATES MAGISTRATE JUDGE 26 27 28