(PC)Candler v. Ball ( 2023 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 STEVEN RANAE GLEEN CANDLER, No. 1:23-cv-00459-JLT-SAB (PC) 9 Plaintiff, ORDER DENYING PLAINTIFF’S FOURTH AND FIFTH MOTIONS FOR 10 v. APPOINTMENT OF COUNSEL AND MOTION TO COMPEL 11 JOHN & JANE DOES, et al., (ECF Nos. 34, 35) 12 Defendants. 13 14 Plaintiff is proceeding pro se and in forma pauperis in this civil rights action filed pursuant 15 to 42 U.S.C. § 1983. 16 Currently before the Court is Plaintiff’s fourth and fifth motions for appointment of 17 counsel and motion to compel, filed September 20, 2023 and September 22, 2023. 18 I. 19 DISCUSSION 20 A. Motion for Appointment of Counsel 21 As Plaintiff is aware, he does not have a constitutional right to appointed counsel in this 22 action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require any 23 attorney to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States 24 District Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in certain 25 exceptional circumstances the court may request the voluntary assistance of counsel pursuant to 26 section 1915(e)(1). Rand, 113 F.3d at 1525. 27 Without a reasonable method of securing and compensating counsel, the court will seek 28 volunteer counsel only in the most serious and exceptional cases. In determining whether 1 | “exceptional circumstances exist, the district court must evaluate both the likelihood of success 2 | onthe merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 3 | complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 4 In the present case, the Court does not find the required exceptional circumstances. 5 | Plaintiff continues to simply argue the merits of his case in seeking appointment of counsel. Even 6 | if it assumed that Plaintiff is not well versed in the law and that he has made serious allegations 7 | which, if proved, would entitle him to relief, his case is not exceptional. The Court is faced with 8 | similar cases almost daily. While the Court recognizes that Plaintiff is at a disadvantage due to 9 | his pro se status and his incarceration, the test is not whether Plaintiff would benefit from the 10 | appointment of counsel. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (“Most 11 | actions require development of further facts during litigation and a pro se litigant will seldom be 12 | ina position to investigate easily the facts necessary to support the case.”) The test is whether 13 | exception circumstances exist and here, they do not. Indeed, the Court issued Findings and 14 | Recommendations finding that Plaintiff stated a cognizable excessive force claim against an 15 | unidentified correctional officer at Wasco State Prison and provides no basis whatsoever as to 16 || why counsel is necessary. (ECF No. 12.) Based on a review of the record, the Court finds that 17 | the issues are not complex and Plaintiff is able to litigate this action pro se. Accordingly, 18 | Plaintiffs fourth and fifth motions for the appointment of counsel are denied, without prejudice. 19 Il. 20 ORDER 21 Based on the foregoing, it is HEREBY ORDERED that Plaintiffs fourth and fifth 22 | motions for appointment of counsel are denied, without prejudice. 23 24 IT IS SO ORDERED. OF. nf ee 25 | Dated: _ September 25, 2023 UNITED STATES MAGISTRATE JUDGE 26 27 28