(PC) Foster v. Clark ( 2023 )

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 THIRD MOTION FOR APPOINTMENT OF 11 v. COUNSEL, WITHOUT PREJUDICE 12 KEN CLARK, et al., (ECF No. 36) 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 third motion for appointment of counsel, filed 18 May 12, 2023. Plaintiff asks for appointment of counsel because he is unable to afford counsel; 19 his imprisonment limits his ability to litigate the action; he has limited access to the library; a 20 trial is likely to involve conflicting testimony; and a he has been unable to procure counsel on his 21 own. (ECF No. 36.) 22 There is no constitutional right to appointed counsel in this action, Rand v. Rowland, 113 23 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require any attorney to represent plaintiff 24 pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern 25 District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the 26 Court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 27 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 |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. Although Defendant has filed an answer to 15 | the complaint, the Court cannot find Plaintiff is likely to succeed on the merits and the record 16 | supports the finding that Plaintiff is able to adequately litigate this action. 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. Further, nothing has changed since Plaintiffs last request for counsel. 20 | Accordingly, Plaintiff's third motion for the appointment of counsel is denied, without prejudice. 21 IT IS SO ORDERED. DAM Le 23 | Dated: _May 15, 2023 _ OO UNITED STATES MAGISTRATE JUDGE 25 26 27 28