(PC) Ellis v. Kern County Sheriff Department ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CHARLES ELLIS, SR., No. 1:22cv-01209-JLT-SAB (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL, 13 v. WITHOUT PREJUDICE 14 KERN COUNTY SHERIFF (ECF No. 31) DEPARTMENT, et al., 15 Defendants. 16 17 18 Plaintiff is proceeding pro se and in forma pauperis in this civil rights action filed pursuant 19 to 42 U.S.C. § 1983. 20 Currently before the Court is Plaintiff’s motion for appointment of counsel, filed 21 September 25, 2023. Plaintiff seeks appointment of counsel because he is incarcerated in a 22 county jail and is unable to do research. 23 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 24 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require any attorney to 25 represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for 26 the Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional 27 circumstances the court may request the voluntary assistance of counsel pursuant to section 28 1915(e)(1). Rand, 113 F.3d at 1525. 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 | onthe 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 | ina 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 proceedings, the 15 Court cannot determine that Plaintiff is likely to succeed on the merits and the Court finds that 16 | Plaintiff adequately litigated this action to date. Accordingly, Plaintiff's motion for the 17 || appointment of counsel is denied, without prejudice. 18 19 IT IS SO ORDERED. DAM Le 20 | Dated: _September 26, 2023 _ ef UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28