(PC) Foster v. Clark ( 2023 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 MICHAEL FOSTER, Case No. 1:22-cv-00976-SAB (PC) 10 Plaintiff, ORDER DENYING PLAINTIFF’S SECOND MOTION FOR APPOINTMENT OF 11 v. COUNSEL, WITHOUT PREJUDICE 12 KEN CLARK, et al., (ECF No. 26) 13 Defendants. 14 15 Plaintiff Michael Foster is proceeding pro se and in forma pauperis in this civil rights 16 action filed pursuant to 42 U.S.C. § 1983. 17 Currently before the Court is Plaintiff’s second motion for appointment of counsel, filed 18 April 5, 2023. Plaintiff asks for appointment of counsel because he is unable to afford counsel; 19 his imprisonment limits his ability to litigate the action; and a trial is likely to involve conflicting 20 testimony. (ECF No. 26.) 21 There is no constitutional right to appointed counsel in this action, Rand v. Rowland, 113 22 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require any attorney to represent plaintiff 23 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 25 Court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 26 F.3d at 1525. 27 Without a reasonable method of securing and compensating counsel, the Court will seek volunteer counsel only in the most serious and exceptional cases. In determining whether 1 | “exceptional circumstances exist, the district court must evaluate both the likelihood of success 2 |on the 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 | in a position to investigate easily the facts necessary to support the case.”) The test is whether 12 | exception circumstances exist and here, they do not. At this early stage of the litigation, the 13 | Court cannot find Plaintiff is likely to succeed on the merits and the record supports the finding 14 | that Plaintiff is able to adequately litigate this action. In addition, circumstances common to 15 | most prisoners, such as lack of legal education and limited law library access, do not establish 16 | exceptional circumstances that would warrant a request for voluntary assistance of counsel. 17 | Accordingly, Plaintiffs second motion for the appointment of counsel is denied, without 18 | prejudice. 19 IT IS SO ORDERED. FA. ee 91 | Dated: _ April 6, 2023 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28