(PC) Smith v. Santoro ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY J. SMITH, ) Case No. 1:21-cv-01329-JLT-SAB (PC) ) 12 Plaintiff, ) ) ORDER DENYING PLAINTIFF’S MOTION FOR 13 v. ) APPOINTMENT OF COUNSEL, WITHOUT PREJUDICE AND SUA SPONTE GRANTING 14 K. SANTORO, et al., ) EXTENSION OF TIME TO FILE OBJECTIONS ) 15 Defendants. ) (ECF No. 22) ) 16 ) ) 17 18 Plaintiff Anthony J. Smith is proceeding pro se in this civil rights action pursuant to 42 U.S.C. 19 § 1983. 20 Currently before the Court is Plaintiff’s motion for appointment of counsel, filed June 14, 21 2022. 22 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 23 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require any attorney to represent 24 plaintiff 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 court 26 may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 27 1525. 28 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 on thi 4 || merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of th 5 || legal issues involved.” Id. (internal quotation marks and citations omitted). 6 In the present case, the Court does not find the required exceptional circumstances. Plaintiff 7 || seeks counsel because he is not competent in the law and has limited access to the law library. Even 8 || it assumed that Plaintiff is not well versed in the law and that he has made serious allegations which, 9 || proved, would entitle him to relief, his case is not exceptional. The Court is faced with similar cases 10 || almost daily. Circumstances common to most prisoners, such as lack of legal education and limited 11 || law library access, do not establish exceptional circumstances that would warrant a request for 12 || voluntary assistance of counsel. While the Court recognizes that Plaintiff is at a disadvantage due to 13 || his pro se status and his incarceration, the test is not whether Plaintiff would benefit from the 14 || appointment of counsel. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (“Most 15 || actions require development of further facts during litigation and a pro se litigant will seldom be in a 16 || position to investigate easily the facts necessary to support the case.”) The test is whether exception 17 || circumstances exist and here, they do not. Thus far, Plaintiff has been able to draft a complaint and 18 || respond to the Court’s orders, and at this stage of the proceedings the Court cannot make a finding th: 19 || Plaintiff is likely to succeed on the merits. Accordingly, Plaintiff's motion for the appointment of 20 || counsel is denied, without prejudice. In the interest of justice, the Court will grant Plaintiff fourteen 21 || (14) days from the date of service of this order to file objections to the pending Findings and 22 || Recommendations, if so desired. 23 24 IT IS SO ORDERED. A (re 25 lI pated: _ June 15, 2022 OF 26 UNITED STATES MAGISTRATE JUDGE 27 28