(PC) Davis v. Portillo ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER BRANDON DAVIS, Case No.: 1:22-cv-00457 AWI-BAK (HBK) (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION 13 v. TO APPOINT COUNSEL 14 M. PORTILLO, et al., (Doc. No. 13) 15 Defendants. 16 17 Plaintiff Christopher Brandon Davis is proceeding pro se and in forma pauperis in this 18 civil rights action brought pursuant to 42 U.S.C. § 1983. 19 I. INTRODUCTION 20 On May 10, 2022, Plaintiff filed a motion to appoint counsel, stating he is unable to afford 21 counsel and has requested leave to proceed in forma pauperis.1 (Doc. No. 13.) Plaintiff contends 22 “imprisonment will greatly limit his ability to litigate” and that the “issues involved in this case 23 are complex and will require significant research and investigation.” (Id. at 1.) Further, Plaintiff 24 states a trial “will likely involve conflicting testimony, and counsel would better enable Plaintiff 25 to present evidence and call/cross examine multiple witnesses.” (Id. at 1-2.) Plaintiff states the 26 action involves multiple defendants and “spans several months in time, which includes outside 27 investigative services from outside agencies.” (Id. at 2.) Finally, Plaintiff states that despite his 1 “repeated efforts to obtain a lawyer,” he has received only one response to his written inquiries. 2 (Id.) Plaintiff appended as an exhibit to his motion a letter from the American Civil Liberties 3 Union Foundation Northern California, indicating it was unable to offer him legal assistance or 4 presentation. (Id. at 3-4.) 5 II. DISCUSSION 6 Plaintiff does not have a constitutional right to appointed counsel in § 1983 actions. Rand 7 v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds on reh'g en 8 banc, 154 F.2d 952 (9th Cir. 1998). Additionally, the Court cannot require an attorney to 9 represent a party under 28 U.S.C. § 1915(e)(1). See Mallard v. U.S. Dist. Court, 490 U.S. 296, 10 304-05 (1989). However, in “exceptional circumstances,” the Court may request the voluntary 11 assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. 12 Given that the Court has no reasonable method of securing and compensating counsel, the 13 Court will seek volunteer counsel only in extraordinary cases. In determining whether 14 “exceptional circumstances exist, a district court must evaluate both the likelihood of success on 15 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 16 complexity of the legal issues involved.” Rand, 113 F.3d at 1525 (internal quotation marks & 17 citations omitted). 18 In the present case, the Court does not find the required exceptional circumstances. 19 Plaintiff’s inability to find counsel is not “a proper factor for the Court to consider in determining 20 whether to request counsel.” Howard v. Hedgpeth, 2010 WL 1641087, at *2 (E.D. Cal. Apr. 20, 21 2010). Even if it is assumed that Plaintiff is not well versed in the law and has made serious 22 allegations that, if proven, would entitle him to relief, Plaintiff’s case is not extraordinary. The 23 Court is faced with similar cases almost daily. Although plaintiff is proceeding pro se and is 24 incarcerated, he faces the same obstacles all pro se prisoners face. Challenges conducting 25 discovery and preparing for trial “are ordinary for prisoners pursuing civil rights claim” and 26 cannot form the basis for appointment of counsel. Courtney v. Kandel, 2020 WL 1432991, at *1 27 (E.D. Cal. Mar. 24, 2020). In addition, at this stage in the proceedings, the Court cannot 1 | record in this case, the Court is unable to find that Plaintiff cannot adequately articulate his 2 | claims. 3 I. CONCLUSION AND ORDER 4 Should this case progress and Plaintiff's circumstances change so that he is able to 5 | demonstrate exceptional circumstances, he may renew his motion for appointment at counsel at 6 | that time. 7 Accordingly, it is hereby ORDERED: 8 Plaintiff's motion for appointment of counsel (Doc. No. 13) is DENIED, without 9 | prejudice. 10 "| Dated: _ June 15,2022 Wile. Wh. arch Yack 12 HELENA M. BARCH-KUCHTA 3 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28