(PC) Gray v. Khoo ( 2022 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 DANA GRAY, Case No. 1:20-cv-01047-ADA-SAB (PC) 11 Plaintiff, ORDER DENYING PLAINTIFF’S FOURTH MOTION FOR APPOINTMENT OF 12 v. COUNSEL, WITHOUT PREJUDICE 13 A. KHOO, et al., (ECF No. 135) 14 Defendants. 15 16 Plaintiff Dana Gray is proceeding pro se and in forma pauperis in this civil rights action 17 filed pursuant to 42 U.S.C. § 1983. 18 Currently before the Court is Plaintiff’s fourth motion for appointment of counsel, filed 19 November 10, 2022. As Plaintiff is aware, she does not have a constitutional right to appointed counsel in this 20 action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require any 21 attorney to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States 22 District Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in certain 23 exceptional circumstances the court may request the voluntary assistance of counsel pursuant to 24 section 1915(e)(1). Rand, 113 F.3d at 1525. 25 26 Without a reasonable method of securing and compensating counsel, the Court will seek 27 volunteer counsel only in the most serious and exceptional cases. In determining whether “exceptional circumstances exist, the district court must evaluate both the likelihood of success 1 | on the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 2 | complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 3 Here, Plaintiff seeks appointment of counsel to assist her in presenting her motion for ‘ reconsideration of the denial of the motion for substitution of parties. The Court does not find ° the required exceptional circumstances. Even if it assumed that Plaintiff is not well versed in the 6 law and that he has made serious allegations which, if proved, would entitle her to relief, her case is not exceptional. The Court is faced with similar cases almost daily. While the Court 8 recognizes that Plaintiff is at a disadvantage due to his pro se status and her incarceration, the test ? is not whether Plaintiff would benefit from the appointment of counsel. See Wilborn v. 10 Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (“Most actions require development of further facts during litigation and a pro se litigant will seldom be in a position to investigate easily the 12 | facts necessary to support the case.”) The test is whether exception circumstances exist and here, 13 they do not. Plaintiff seeks counsel, in part, “to coordinate the implementation of prospective 14 | and transfer of funds to plaintiff from the monetary judgment.” (ECF No. 135.) Both 15 parties have filed motions for summary judgment and contrary to Plaintiff's contention, there has 16 | been no ruling that she has prevailed as matter of law. Thus, at this juncture, the Court cannot 17 | determine whether Plaintiff is likely to proceed on the merits of her claim. Accordingly, 18 | Plaintiffs fourth motion for the appointment of counsel is denied, without prejudice. 19 20 91 | IT IS SO ORDERED. A (Fe 22 | Dated: _November 14, 2022 OF 3 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28