(PC) Foster v. Clark ( 2022 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 MICHAEL FOSTER, Case No. 1:22-cv-00976-SAB (PC) 10 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL, 11 v. WITHOUT PREJUDICE 12 KEN CLARK, et al., (ECF No. 18) 13 Defendants. 14 15 Plaintiff Michael Foster is proceeding pro se and in forma pauperis in this civil rights 16 action filed pursuant to 42 U.S.C. § 1983. 17 Currently before the Court is Plaintiff’s motion for appointment of counsel, filed 18 December 16, 2022. Plaintiff asks for appointment of counsel because he is unable to afford 19 counsel; his imprisonment limits his ability to litigate the action; limited knowledge of the law 20 and access to the law library; he is currently housed in administrative segregation; he is a 21 participant in the mental health delivery system; and he is having difficulty with his eye sight. 22 (ECF No. 18.) 23 Plaintiff is advised that there is no constitutional right to appointed counsel in this action, 24 Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require any 25 attorney to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States 26 District Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in certain 27 exceptional circumstances the Court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. nen nen nn enn ee nn nn nn nee I SD ID 1 Without a reasonable method of securing and compensating counsel, the Court will seek 2 | volunteer counsel only in the most serious and exceptional cases. In determining whether 3 | “exceptional circumstances exist, the district court must evaluate both the likelihood of success 4 |on the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 5 | complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 6 In the present case, the Court does not find the required exceptional circumstances. Even 7 | if it assumed that Plaintiff is not well versed in the law and that he has made serious allegations 8 | which, if proved, would entitle him to relief, his case is not exceptional. The Court is faced with 9 | similar cases almost daily. While the Court recognizes that Plaintiff is at a disadvantage due to 10 | his pro se status and his incarceration, the test is not whether Plaintiff would benefit from the 11 | appointment of counsel. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (“Most 12 | actions require development of further facts during litigation and a pro se litigant will seldom be 13 | in a position to investigate easily the facts necessary to support the case.”) The test is whether 14 | exception circumstances exist and here, they do not. At this early stage of the litigation, the 15 | Court cannot find Plaintiff is likely to succeed on the merits, and there are currently no deadlines 16 | for which Plaintiff must comply as Defendants have not yet filed an answer. In addition, 17 | circumstances common to most prisoners, such as lack of legal education and limited law library 18 | access, do not establish exceptional circumstances that would warrant a request for voluntary 19 | assistance of counsel. While Plaintiff's mental and medical conditions are unfortunate, the 20 | record demonstrates that Plaintiff is presently able to litigate this action. Accordingly, Plaintiff's 21 | motion for the appointment of counsel is denied, without prejudice. 22 73 IT IS SO ORDERED. DAM Le 24 | Dated: _December 19, 2022 _ Of 05 UNITED STATES MAGISTRATE JUDGE 26 27 28