(PC) Dillingham v. Emerson ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 JERRY DILLINGHAM, Case No. 1:18-cv-00507-AWI-SAB (PC) 11 Plaintiff, ORDER DENYING PLAINTIFF’S SIXTH 12 MOTION FOR APPOINTMENT OF v. COUNSEL, WITHOUT PREJUDICE 13 N. EMERSON, et al., (ECF No. 126) 14 Defendants. 15 16 17 Plaintiff Jerry Dillingham is a state prisoner proceeding pro se and in forma pauperis in 18 this civil rights action pursuant to 42 U.S.C. § 1983. 19 Currently before the Court is Plaintiff’s sixth motion for appointment of counsel, filed 20 April 18, 2022. 21 As Plaintiff was previously advised, he does not have a constitutional right to appointed 22 counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot 23 require any attorney to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1), Mallard v. United 24 States District Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in 25 certain exceptional circumstances the Court may request the voluntary assistance of counsel 26 pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. Without a reasonable method of securing 27 and compensating counsel, the court will seek volunteer counsel only in the most serious and 28 exceptional cases. In determining whether “exceptional circumstances exist, the district court must ——e———a I ENN OI OI I 1 | evaluate both the likelihood of success on the merits [and] the ability of the [plaintiff] to articulate 2 | his claims pro se in light of the complexity of the legal issues involved.” Id. (internal quotation 3 | marks and citations omitted). 4 The Court has limited resources in appointing counsel in prisoner cases in this District, and 5 | Plaintiff's present motion does not meet the required exception circumstances to warrant 6 | appointment of counsel. As with Plaintiffs prior motions for appointment of counsel, he contends 7 | that he is unable to litigate this action because he is illiterate, has mental disabilities, requires the 8 || assistance of another individual to draft his documents, and is physically disabled. Even if it is 9 | assumed that Plaintiff is not well versed in the law and that he has made serious allegations which, 10 | if proved, would entitle him to relief, his case is not exceptional. Circumstances common to most 11 | prisoners, such as a lack of education or limited law library access, do not alone establish 12 | exceptional circumstances that would warrant a request for voluntary assistance of counsel. The 13 | legal issues present in this action are not complex. Further, there is no indication from the record 14 | that Plaintiff has been unable to adequately articulate claims and prosecute this action—whether 15 || alone or with other assistance. Indeed, the record in this case reveals that Plaintiff has been able to 16 | thoroughly litigate this action, as he has filed various motions, including a motion to compel. (ECF 17 | No. 102.) Thus, there is no showing that Plaintiff has been prevented from pursuing this case. 18 | Accordingly, Plaintiff's sixth motion for appointment of counsel shall be denied. 19 20 IT IS SO ORDERED. DAM Le 21 | Dated: _April 20, 2022 __ OO UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28