(PC) Robinson v. Cryer ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JEFFERY DONELL ROBINSON, Case No. 1:20-cv-00980-JLT-HBK (PC) 12 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR STATUS REQUEST AND DENYING 13 v. MOTION FOR APPOINTMENT OF COUNSEL 14 C. CRYER, ET. AL. , (Doc. No. 38) 15 Defendants. 16 17 Pending before the Court is Plaintiff’s motion for a status of this case and appointment of 18 counsel incorporated within his notice of change. (Doc. No. 38). Defendants filed a response 19 stating no opposition to the request for a status update. (Doc. No. 39). 20 Regarding Plaintiff’s request for an update on the case, the Court issued a screening order 21 on Plaintiff’s initial complaint and directed service. Prior to Defendants filing a response, 22 Plaintiff filed a first amended complaint. This same day, the Court issued a screening order on 23 Plaintiff’s first amended complaint. (Doc. No. 41). 24 Turning to Plaintiff’s motion to appoint counsel, the United States Constitution does not 25 require appointment of counsel in civil cases. See Lewis v. Casey, 518 U.S. 343, 354 (1996) 26 (explaining Bounds v. Smith, 430 U.S. at 817, did not create a right to appointment of counsel in 27 civil cases). Under 28 U.S.C. § 1915, this court has discretionary authority to appoint counsel for 28 an indigent to commence, prosecute, or defend a civil action. See 28 U.S.C. § 1915(e)(1) (stating 1 the court has authority to appoint counsel for people unable to afford counsel); see also United 2 States v. McQuade, 519 F.2d 1180 (9th Cir. 1978) (addressing relevant standard of review for 3 motions to appoint counsel in civil cases) (other citations omitted). However, motions to appoint 4 counsel in civil cases are granted only in “exceptional circumstances.” Id. at 1181. The court 5 may consider many factors to determine if exceptional circumstances warrant appointment of 6 counsel including, but not limited to, proof of indigence, the likelihood of success on the merits, 7 and the ability of the plaintiff to articulate his or her claims pro se in light of the complexity of 8 the legal issues involved. Id.; see also Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), 9 withdrawn in part on other grounds on reh’g en banc, 154 F.2d 952 (9th Cir. 1998). 10 Plaintiff has not met his “burden of demonstrating exceptional circumstances.” Jones v. 11 Chen, 2014 WL 12684497, at *1 (E.D. Cal. Jan. 14, 2014). Plaintiff’s indigence does not qualify 12 “as an exceptional circumstance in a prisoner civil rights case.” Montano v. Solomon, 2010 WL 13 2403389, at *2 (E.D. Cal. June 11, 2010); Callender v. Ramm, 2018 WL 6448536, at *3 (E.D. 14 Cal. Dec. 10, 2018). Normal challenges faced by pro se litigants do not warrant appointment of 15 counsel. Siglar v. Hopkins, 822 F. App'x 610, 612 (9th Cir. 2020) (denying appointment of 16 counsel because the plaintiff’s “circumstances were not exceptionally different from the majority 17 of the challenges faced by pro se litigants.”). Moreover, while the Court appreciates Plaintiff’s 18 efforts to secure counsel, his inability to find counsel is not “a proper factor for the Court to 19 consider in determining whether to request counsel.” Howard v. Hedgpeth, 2010 WL 1641087, at 20 *2 (E.D. Cal. Apr. 20, 2010). Plaintiff has capably filed motions and both his initial complaint 21 and first amended complaint have stated a cognizable Eight Amendment claim to survive an 22 initial screening. Plaintiff has not showed exceptional circumstances warrant appointment of 23 counsel at this stage of the proceedings. Should this case progress and Plaintiff’s circumstances 24 change so that he is able to demonstrate exceptional circumstances, he may renew his motion for 25 appointment at counsel at that time. 26 //// 27 //// 28 //// 1 ACCORDINGLY, it is ORDERED: 2 1. Plaintiffs motion for status update (Doc. No. 38) is GRANTED to extent an update is 3 | provided herein. 4 2. Plaintiffs motion to appoint counsel (Doc. No. 38) is DENIED. 5 ° | Dated: _June 23,2022 law □□□ foareA Zacks 7 HELENA M. BARCH-KUCHTA 3 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28