(PC) Holmes v. Sherman ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TERREL HOLMES, Case No. 1:20-cv-00737-ADA-HBK (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL 13 v. (Doc. No. 37) 14 M. MUELLER, 15 Defendant. 16 17 Pending before the Court is Plaintiff’s renewed motion for appointment of counsel filed 18 on August 29, 2023. (Doc. No. 37). Plaintiff, a state prisoner, who is proceeding pro se and in 19 forma pauperis on his First Amended Complaint as screened, seeks appointment counsel because 20 he is indigent and has limited access to the law library. (Doc. No. 37 at 1-2). Plaintiff believes 21 his claims are complex and counsel would be better able to present testimony and evidence. (Id. 22 at 2). The Court previously denied Plaintiff appointment of counsel. (Doc. No. 32). Plaintiff 23 presents no changed circumstances for the Court to reconsider its previous order. 24 As previously advised, the United States Constitution does not require appointment of 25 counsel in civil cases. See Lewis v. Casey, 518 U.S. 343, 354 (1996) (explaining Bounds v. Smith, 26 430 U.S. at 817, did not create a right to appointment of counsel in civil cases). Under 28 U.S.C. 27 § 1915, this court has discretionary authority to appoint counsel for an indigent to commence, 28 prosecute, or defend a civil action. See 28 U.S.C. § 1915(e)(1) (stating the court has authority to 1 | appoint counsel for people unable to afford counsel); see also United States v. McQuade, 519 2 | F.2d 1180 (9th Cir. 1978) (addressing relevant standard of review for motions to appoint counsel 3 | incivil cases) (other citations omitted). However, motions to appoint counsel in civil cases are 4 | granted only in “exceptional circumstances.” Jd. at 1181. Plaintiff has not met his “burden of 5 | demonstrating exceptional circumstances.” Jones v. Chen, 2014 WL 12684497, at *1 (E.D. Cal. 6 | Jan. 14, 2014). 7 Plaintiffs indigence does not qualify “as an exceptional circumstance in a prisoner civil 8 || rights case.” Montano v. Solomon, 2010 WL 24033839, at *2 (E.D. Cal. June 11, 2010); Callender 9 | v. Ramm, 2018 WL 6448536, at *3 (E.D. Cal. Dec. 10, 2018). And his purported lack of legal 10 | knowledge is a normal challenge faced by all pro se litigants and does not warrant appointment of 11 } counsel. Siglar v. Hopkins, 822 F. App'x 610, 612 (9th Cir. 2020) (denying counsel because the 12 | plaintiff's “circumstances were not exceptionally different from the majority of the challenges 13 | faced by pro se litigants.”). The undersigned acknowledges that while the assistance of counsel 14 | may be helpful, the “relevant consideration is not one of convenience” but rather exceptionalness. 15 | Howard v. Hedgpeth, 2010 WL 1641087, at *2 (E.D. Cal. Apr. 20, 2010). Contrary to Plaintiffs 16 | assertion, the Court does not find the issues are complex that due process violations will occur 17 || absent the presence of counsel.” Bonin v. Vasquez, 999 F.2d 425, 428-29 (9th Cir. 1993). 18 | Furthermore, this Court finds Plaintiff's statement concerning his limited access to the law library 19 | unavailing. California Code of Regulations requires each warden to ensure a law library and for 20 | all inmates to have access. See Cal. Code Regs. tit. 15 $§ 3120, 3123 (2022). 21 Accordingly, it is ORDERED: 22 Plaintiff's renewed motion for appointment of counsel (Doc. No. 37) is DENIED. | Dated: _ September 21, 2023 Wiha. □□ fares Back 24 HELENA M. BARCH-KUCHTA 35 UNITED STATES MAGISTRATE JUDGE 26 27 28