(PC) Gilmore v. Castillo ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 EDWARD D. GILMORE, 1:21-cv-00617-GSA-PC 12 Plaintiff, ORDER DENYING MOTION FOR 13 vs. APPOINTMENT OF COUNSEL 14 D. CASTILLO, (ECF No. 9.) 15 Defendant. 16 17 18 Edward D. Gilmore (“Plaintiff”) is a state prisoner proceeding pro se and in forma 19 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint 20 commencing this action on April 14, 2021. (ECF No. 1.) The Complaint awaits the Court’s 21 requisite screening under 28 U.S.C. § 1915. 22 On December 22, 2022, Plaintiff filed a motion seeking the appointment of counsel. 23 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 24 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to represent 25 Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the 26 Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in certain 27 exceptional circumstances the court may request the voluntary assistance of counsel pursuant to 28 section 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 of 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. 7 Plaintiff seeks appointment of counsel because he is unable to afford counsel, the issues involved 8 in this case are complex, Plaintiff lacks adequate access to the law library, he has been unable to 9 find an attorney to represent him, he has a limited knowledge of law, and he is being harassed by 10 correctional officers. These are not exceptional circumstances under the law. Plaintiff’s claims 11 for excessive force, retaliation, failure to protect, and confiscation of property are not complex, 12 and based on a review of the record in this case, Plaintiff can adequately articulate his claims and 13 respond to court orders. Thus, the Court does not find the required exceptional circumstances, 14 and Plaintiff’s motion shall be denied without prejudice to renewal of the motion at a later stage 15 of the proceedings. 16 Accordingly, for the foregoing reasons, Plaintiff’s motion for the appointment of counsel 17 is HEREBY DENIED, without prejudice. 18 IT IS SO ORDERED. 19 20 Dated: January 4, 2023 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28