(PC) Webb v. Llamas ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BRYAN WEBB, Case No. 1:20-cv-00725-SKO (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S REQUEST FOR APPOINTMENT OF 13 v. COUNSEL 14 P. LLAMAS, et al., (Doc. 55) 15 Defendants. 16 17 Plaintiff Bryan Webb is a former state prisoner proceeding pro se and in forma pauperis 18 in this civil rights action brought pursuant to 42 U.S.C. § 1983. 19 I. RELEVANT BACKGROUND 20 On March 10, 2023, this Court issued an Order To Show Cause Why Action Should Not 21 Be Dismissed For Failure To Comply With Local Rules And Failure To Prosecute (OSC) due to 22 Plaintiff’s failure to file an opposition or statement of non-opposition to Defendants’ pending 23 motion for summary judgment. (Doc. 53.) Plaintiff was ordered to file a written response to the 24 OSC, or alternatively, to file an opposition or statement of non-opposition to Defendants’ motion 25 for summary judgment, within 21 days of the date of service of the order. (Id. at 3.) 26 On April 3, 2023, Plaintiff filed a response to the OSC. (Doc. 55.) In addition to 27 addressing his failure to file an opposition or statement of non-opposition to Defendants’ pending 1 motion for summary judgment,1 Plaintiff requested the “Court to appoint counsel to represent him 2 in this case ….” (Id. at 2.) The Court construes that portion of Plaintiff’s response to the OSC as a 3 motion to appoint counsel and addresses Plaintiff’s request below. 4 II. DISCUSSION 5 Plaintiffs do not have a constitutional right to appointed counsel in § 1983 actions. Rand v. 6 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on other grounds, 154 F.3d 952, 954 7 n.1 (9th Cir. 1998). Nor can the Court require an attorney to represent a party under 28 U.S.C. § 8 1915(e)(1). See Mallard v. U.S. Dist. Court, 490 U.S. 296, 304-05 (1989). However, in 9 “exceptional circumstances,” the Court may request the voluntary assistance of counsel pursuant 10 to section 1915(e)(1). Rand, 113 F.3d at 1525. 11 Given that the Court has no reasonable method of securing and compensating counsel, the 12 Court will seek volunteer counsel only in extraordinary cases. In determining whether 13 “exceptional circumstances exist, a district court must evaluate both the likelihood of success on 14 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 15 complexity of the legal issues involved.” Rand, 113 F.3d at 1525 (internal quotation marks & 16 citations omitted). 17 The Court does not find the required exceptional circumstances in this case. Even 18 assuming Plaintiff is not well versed in the law and has made serious allegations that, if proven, 19 would entitle him to relief, Plaintiff’s case is not exceptional. The Court is faced with similar 20 cases almost daily. While the Court recognizes that Plaintiff is at a disadvantage due to his pro se 21 status and his incarceration, the test is not whether Plaintiff would benefit from the appointment 22 of counsel. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). The test is whether 23 exceptional circumstances exist; here, they do not. Indeed, circumstances common to most 24 prisoners, such as lack of legal education and limited law library access, do not establish 25 exceptional circumstances that would warrant a request for voluntary assistance of counsel. See, 26 e.g., Faultry v. Saechao, 2020 WL 2561596, at *2 (E.D. Cal., May 20, 2020) (stating that 27 1 In an order issued April 4, 2023, Plaintiff was granted a final 60-day extension of time within which to 1 “[c]ircumstances common to most prisoners, such as lack of legal education and limited law 2 library access, do not establish exceptional circumstances supporting appointment of counsel”); 3 see also Rand, 113 F.3d at 1525 (finding no abuse of discretion under 28 U.S.C. § 1915(e) when 4 district court denied appointment of counsel despite fact that pro se prisoner “may well have fared 5 better-particularly in the realm of discovery and the securing of expert testimony”). 6 Plaintiff is advised that the fact an attorney may be better able to perform research, 7 investigate, and represent a plaintiff does not change the analysis. There is little doubt most pro se 8 litigants “find it difficult to articulate [their] claims,” and would be better served with the 9 assistance of counsel. Wilborn, 789 F.2d at 1331. For this reason, in the absence of counsel, 10 federal courts employ procedures which are highly protective of a pro se litigant's rights. See 11 Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding pro se complaint to less stringent standard) 12 (per curiam). In fact, where a plaintiff appears pro se in a civil rights case, the court must construe 13 the pleadings liberally and afford the plaintiff any benefit of the doubt. Karim–Panahi v. Los 14 Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). The rule of liberal construction is 15 “particularly important in civil rights cases.” Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 16 1992). Thus, where a pro se litigant can “articulate his claims” in light of the relative complexity 17 of the matter, the “exceptional circumstances” which might require the appointment of counsel do 18 not exist. Wilborn, 789 F.2d at 1331; accord Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). 19 At this stage in the proceedings, the Court cannot determine whether Plaintiff is likely to 20 succeed on the merits. Defendants have filed a motion for summary judgment addressing the 21 merits of Plaintiff’s claims and briefing is ongoing. The Court also finds Plaintiff can articulate 22 his claims. Plaintiff’s complaint survived initial screening and the Court ordered service of the 23 complaint under the Court’s e-service program in August 2020. (See Doc. 8.) Plaintiff then filed 24 an opposition (Doc. 21) to Defendants’ motion to dismiss (Doc. 14), which was granted in part 25 and denied in part on November 8, 2021. (See Docs 31 & 32.) The Court notes that Plaintiff has 26 been prosecuting his case for nearly three years. 27 In sum, Plaintiff faces challenges and circumstances faced by most pro se prisoner 1 Rand, 113 F.3d at 1525. 2 III. CONCLUSION AND ORDER 3 For the reasons stated above, Plaintiff’s request or motion for the appointment of counsel 4 (see Doc. 55 at 2) is DENIED without prejudice. 5 IT IS SO ORDERED. 6 7 Dated: April 24, 2023 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27