Cleveland v. Xiong ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TIMOTHY CLEVELAND, Case No. 1:22-cv-01366-ADA-BAM 12 Plaintiff, ORDER DENYING REQUEST FOR APPOINTMENT OF COUNSEL WITHOUT 13 v. PREJUDICE 14 BLONG XIONG, et al., (Doc. 9) 15 Defendants. 16 17 Plaintiff Timothy Cleveland, proceeding pro se and in forma pauperis, filed this action in 18 the United States District Court, District of Nevada, on October 20, 2022. (Doc. 5.) The matter 19 was transferred to this Court on October 25, 2022. (Doc. 4.) On November 28, 2022, Plaintiff 20 requested appointment of counsel, which was denied without prejudice. (See Docs. 7, 8.) 21 Currently before the Court is Plaintiff’s renewed motion for appointment of counsel. 22 Plaintiff claims that he is entitled to counsel under the Criminal Justice Act, 18 U.S.C. § 3006A, 23 because he faces a loss of liberty. Plaintiff also claims that he is entitled to counsel under the 24 Sixth Amendment to the United States Constitution. (Doc. 9.) 25 Plaintiff’s assertion that he is faced with a loss of liberty in a civil action initiated by him 26 for injunctive relief is not supported and Plaintiff is not entitled to the appointment of counsel 27 pursuant to the Criminal Justice Act. Further, “[t]he Sixth Amendment provides for the right to 28 effective assistance of counsel, but it applies only for criminal cases, not civil cases.” Thomsen v. 1 Sacramento Metro. Fire Dist., No. 2:09-cv-01108 FCD, 2009 WL 8741960, at *11 (E.D. Cal. 2 Oct. 20, 2009) (citation and quotation omitted); Turner v. Rogers, 564 U.S. 431, 441 (2011) 3 (“[T]he Sixth Amendment does not govern civil cases.”). Plaintiff does not have the 4 constitutional right to appointment of counsel in a civil action. See Palmer v. Valdez, 560 F.3d 5 965, 970 (9th Cir. 2009) (“Generally, a person has no right to counsel in civil actions.”); see also 6 Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on other grounds, 154 F.3d 7 952, 954 n.1 (9th Cir. 1998). 8 As the Court previously explained, it cannot require an attorney to represent Plaintiff 9 pursuant to 28 U.S.C. §1915(e)(1). Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 10 296, 298 (1989). However, in certain exceptional circumstances the Court may request the 11 voluntary assistance of counsel pursuant to section 1915(e)(1). Palmer, 560 F.3d at 970; Rand, 12 113 F.3d at 1525. Without a reasonable method of securing and compensating counsel, the Court 13 will seek volunteer counsel only in the most serious and exceptional cases. In determining 14 whether “exceptional circumstances exist, a court must consider the likelihood of success on the 15 merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity 16 of the legal issues involved.” Palmer, 560 F.3d at 970 (internal quotation marks and citations 17 omitted). 18 Here, the Court does not find the required exceptional circumstances. Even if it is 19 assumed that Plaintiff is not well versed in the law and that he has made serious allegations 20 which, if proved, would entitle him to relief, his case is not exceptional. This Court is faced with 21 similar cases almost daily from pro se plaintiffs. Further, at this early stage in the proceedings, 22 the Court cannot make a determination that Plaintiff is likely to succeed on the merits. There also 23 is no indication from the record that Plaintiff is unable to articulate his claims pro se. 24 Accordingly, Plaintiff’s request for the appointment of counsel is DENIED without prejudice. IT IS SO ORDERED. 25 26 Dated: December 29, 2022 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 27 28