(PC) Shepard v. Mohyuddin ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL SHEPARD, No. 2:20-cv-01445-KJM-JDP (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION TO APPOINT COUNSEL AND STAY THE 13 v. CASE 14 KELSO, et al., ECF No. 55 15 Defendants. 16 17 Plaintiff is a state inmate proceeding without counsel in this civil rights action brought 18 under 42 U.S.C. § 1983. Plaintiff moves for the appointment of counsel and to stay this matter. 19 ECF No. 55. 20 Plaintiff does not have a constitutional right to appointed counsel in this action, see Rand 21 v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court lacks the authority to require an 22 attorney to represent plaintiff. See Mallard v. U.S. Dist. Ct. for the S. Dist. of Iowa, 490 U.S. 296, 23 298 (1989). The court can request the voluntary assistance of counsel. See 28 U.S.C. 24 § 1915(e)(1) (“The court may request an attorney to represent any person unable to afford 25 counsel”); Rand, 113 F.3d at 1525. But without a means to compensate counsel, the court will 26 seek volunteer counsel only in exceptional circumstances. In determining whether such 27 circumstances exist, “the district court must evaluate both the likelihood of success on the merits 28 [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the 1 legal issues involved.” Rand, 113 F.3d at 1525 (internal quotation marks and citations omitted). 2 The court, on its own motion, appointed counsel for plaintiff in April 2021. ECF No. 14. 3 With plaintiff’s consent, I granted plaintiff’s appointed counsel’s motion to withdraw from 4 representing plaintiff. ECF No. 63. Plaintiff now seeks the appointment of a new attorney or to 5 stay the case. ECF No. 55. 6 Plaintiff argues that he should be appointed counsel because he was previously unable to 7 access the law library when he was housed in administrative segregation, and because he is not 8 mentally stable. ECF No. 55 at 3. Plaintiff acknowledges that he is no longer housed in 9 administrative segregation and that he was transferred to a different prison. Id. If plaintiff is 10 unable to access the prison library in the future, he may seek assistance from the court. His other 11 argument—that he is mentally impaired—does not warrant the appointment of counsel at this 12 time. See Thompson v. Paramo, No. 16cv951-MMA (BGS), 2018 WL 4357993, at *1 (S.D. Cal. 13 Sept. 13, 2018); Jones v. Kuppinger, 2:13-cv-451-WBS (AC), 2015 WL 5522290, at *3-4 (E.D. 14 Cal. Sept. 17, 2015) (“Circumstances common to most prisoners, such as a deficient general 15 education, lack of knowledge of the law, mental illness and disability, do not in themselves 16 establish exceptional circumstances warranting appointment of voluntary civil counsel.”). The 17 allegations in the complaint are not exceptionally complicated, and plaintiff has not demonstrated 18 that he is likely to succeed on the merits. 19 On October 10, 2023, the court directed both parties to file status reports indicating 20 whether any party wished to conduct additional discovery. ECF No. 63. Plaintiff responded that 21 he needed an additional ninety days to conduct discovery. ECF No. 65. On November 27, 2023, 22 the court modified the discovery and scheduling order to allow plaintiff the time he requested. 23 ECF No. 66. Therefore, plaintiff’s motion to stay the case is denied. 24 Accordingly, it is hereby ORDERED that plaintiff’s motion for the appointment of 25 counsel and to stay the case, ECF No. 55, is denied. 26 27 28 1 > IT IS SO ORDERED. 3 ( | { Wine Dated: _ November 28, 2023 Q_—_—. 4 JEREMY D. PETERSON 5 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28