(PC) Brooks v. Campbell ( 2023 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 ROSS ANTHONY BROOKS, Case No. 1:23-cv-01058-JLT-BAM (PC) 10 Plaintiff, ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL 11 v. (ECF No. 21) 12 CAMPBELL, et al., 13 Defendants. 14 15 Plaintiff Ross Anthony Brooks (“Plaintiff”) is a state prisoner proceeding pro se and in 16 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on 17 Plaintiff’s first amended complaint against Defendant Parra for failure to protect/intervene in 18 violation of the Eighth Amendment. 19 Currently before the Court is Plaintiff’s motion for appointment of counsel, filed 20 December 21, 2023. (ECF No. 21.) Plaintiff requests appointment of counsel because he is 21 unable to afford counsel, the issues involved in this case are complex, and Plaintiff has limited 22 access to the law library. Plaintiff has made repeated efforts to obtain a lawyer, and he is 23 experiencing adverse effects just trying to receive non-redacted incident reports. Plaintiff 24 references the Court’s recent order scheduling this action for an early settlement conference as the 25 reason he is seeking counsel. (Id.) 26 Plaintiff is informed that he does not have a constitutional right to appointed counsel in 27 this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on other 28 grounds, 154 F.3d 952, 954 n.1 (9th Cir. 1998), and the court cannot require an attorney to 1 represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. U.S. Dist. Court for the S. Dist. 2 of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the court may 3 request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 4 1525. 5 Without a reasonable method of securing and compensating counsel, the Court will seek 6 volunteer counsel only in the most serious and exceptional cases. In determining whether 7 “exceptional circumstances exist, a district court must evaluate both the likelihood of success on 8 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 9 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 10 The Court has considered Plaintiff’s request, but does not find the required exceptional 11 circumstances. Even if it is assumed that Plaintiff has made serious allegations which, if proved, 12 would entitle him to relief, his case is not exceptional. This Court is faced with similar cases filed 13 almost daily by prisoners who must obtain discovery and conduct legal research with limited 14 access to a prison law library and limited education in the law. These plaintiffs also must litigate 15 their cases and attend settlement conferences without the assistance of counsel. 16 Furthermore, at this stage in the proceedings, the Court cannot make a determination that 17 Plaintiff is likely to succeed on the merits. Although Plaintiff’s complaint was found to state a 18 cognizable claim, this does not mean there is a likelihood of success on the merits. Finally, based 19 on a review of the record in this case, the Court does not find that Plaintiff cannot adequately 20 articulate his claims. 21 Accordingly, Plaintiff’s motion to appoint counsel, (ECF No. 21), is HEREBY DENIED, 22 without prejudice. 23 IT IS SO ORDERED. 24 25 Dated: December 22, 2023 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 26 27 28