(PC) Outhoummountry v. Pascua ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 STACEN OMAR OUTHOUMMOUNTRY, ) Case No.: 1:22-cv-00104-SAB (PC) ) 12 Plaintiff, ) ) ORDER DENYING PLAINTIFF’S SECOND 13 v. ) MOTION FOR APPOINTMENT OF COUNSEL, WITHOUT PREJUDICE 14 N. PASCUA, et al., ) ) (ECF No. 17) 15 Defendants. ) ) 16 ) 17 Plaintiff Stacen Omar Outhoummountry is proceeding pro se and in forma pauperis in this civil 18 rights action pursuant to 42 U.S.C. § 1983. 19 Currently before the Court is Plaintiff’s second motion for appointment of counsel, filed March 20 14, 2022 (ECF No. 17.) Plaintiff asks for appointment of counsel because he is unable to afford 21 counsel; his imprisonment limits his ability to litigate the action; limited knowledge of the law and 22 access to the law library; a trial would likely involve conflicting testimony; the issues in this case are 23 complex; and he has limited education. (ECF No. 17.) 24 As Plaintiff was previously advised, there is no constitutional right to appointed counsel in this 25 action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require any 26 attorney to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District 27 Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional 28 1 || circumstances the Court may request the voluntary assistance of counsel pursuant to section 2 || 1915¢e)C1). Rand, 113 F.3d at 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, the district court must evaluate both the likelihood of success on th 6 || merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the 7 || legal issues involved.” Id. (internal quotation marks and citations omitted). 8 In the present case, the Court does not find the required exceptional circumstances. Even if it 9 || assumed that Plaintiff is not well versed in the law and that he has made serious allegations which, if 10 || proved, would entitle him to relief, his case is not exceptional. The Court is faced with similar cases 11 || almost daily. While the Court recognizes that Plaintiff is at a disadvantage due to his pro se status an 12 || his incarceration, the test is not whether Plaintiff would benefit from the appointment of counsel. □□□ 13 || Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (“Most actions require development of 14 || further facts during litigation and a pro se litigant will seldom be in a position to investigate easily the 15 || facts necessary to support the case.”) The test is whether exception circumstances exist and here, the 16 do not. At this early stage of the litigation, the Court cannot find Plaintiff is likely to succeed on the 17 || merits, as it has yet to screen Plaintiff's complaint. Indeed, nothing has changed since Plaintiff's first 18 || motion for appointment of counsel was filed and denied. In addition, circumstances common to most 19 || prisoners, such as lack of legal education and limited law library access, do not establish exceptional 20 || circumstances that would warrant a request for voluntary assistance of counsel. Accordingly, 21 || Plaintiff's second motion for the appointment of counsel is denied, without prejudice. 22 23 24 ||} ITIS SO ORDERED. A (Fe 25 |! Dated: _ April 4, 2022 OF 26 UNITED STATES MAGISTRATE JUDGE 27 28