(PC)Whatley v. Cisneros ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 REGINALD WAYNE WHATLEY, Case No. 1:22-cv-00270-CDB (PC) 12 Plaintiff, ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL 13 v. 14 THERESA CISNEROS, et al., (Doc. 14) 15 Defendants. 16 17 Plaintiff Reginald Wayne Whatley is a state prisoner proceeding pro se and in forma 18 pauperis in this civil rights action filed under 42 U.S.C. § 1983. On May 24, 2023, Plaintiff filed 19 a motion for the appointment of counsel. (Doc. 14.) As grounds, Plaintiff states he has a poor 20 education and a 4.0 TABE score; he is unable to investigate his claims; he cannot get copies and 21 evidence he will need for trial. (Id.) 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). The district courts lack authority to require 24 counsel to represent indigent prisoners in section 1983 cases. Mallard v. U.S. Dist. Ct. for the S. 25 Dist. 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. 28 Without a reasonable method of securing and compensating counsel, the Court seeks 1 volunteer counsel only in the most serious and exceptional cases. In determining whether 2 “exceptional circumstances exist, the district court must evaluate both the likelihood of success 3 on the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 4 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 5 The Court does not find that this case presents the required exceptional circumstances. 6 Even assuming Plaintiff is not well-versed in the law and he has made serious allegations that, if 7 proven, would entitle him to relief, this case is not exceptional. The Court is faced with similar 8 cases almost daily. While the Court recognizes Plaintiff is at a disadvantage due to his pro se 9 status and her incarceration, the test is not whether Plaintiff would benefit from the appointment 10 of counsel. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (“Most actions 11 require development of further facts during litigation and a pro se litigant will seldom be in a 12 position to investigate easily the facts necessary to support the case.”). The test is whether 13 exception circumstances exist, and they do not in this case. 14 At this stage of the proceedings, the Court cannot determine whether Plaintiff is likely to 15 proceed on the merits of his claim. Circumstances common to most prisoners, such as lack of 16 legal education and limited law library access, do not establish exceptional circumstances that 17 would warrant a request for voluntary assistance of counsel. Also, based on a review of the record 18 in this case, the Court does not find that Plaintiff cannot adequately articulate his claims. Indeed, 19 the Court has reviewed the dockets in at least four other § 1983 actions that Plaintiff commenced 20 in the Southern District of California prior to commencing the instant suit and it appears Plaintiff, 21 without counsel, is more than capable of articulating claims, preparing amended pleadings, 22 responding to motions – and in at least two of those cases, settling the matters to the parties’ 23 mutual satisfaction.1 24 Plaintiff is advised that in ruling on any matters, the Court will thoroughly review the 25 record of the case and research the relevant legal standards. 26 27 1 See Whatley v. Valdovinos, No. 3:18-cv-02761-CAB-DEB (S.D. Cal.); Whatley v. Gray, No. 3:17-cv-01591-DMS-NLS (S.D. Cal.); Whatley v. Day, No. 3:16-cv-02286-BTM-JLB (S.D. 28 Cal.); Whatley v. Arciniega, No. 1:15-cv-2632-BAS-RBB (S.D. Cal). 1 Plaintiff has requested an update on the status of his case. The docket indicates different 2 | judges have been assigned to this case, which is indicative of the case management challenges 3 | presently faced by the Court. “This Court has one of the heaviest caseloads in the nation, and due 4 | to unfilled judicial vacancies, which is further exacerbated by the Covid-19 pandemic, operates 5 | under a declared judicial emergency.” Harris v. Fisher, No. 1:22-cv-00716-HBK (PC), 2022 WL 6 | 4473384, at *1 (E.D. Cal. Sept. 26, 2022) (considering involuntary dismissal under Fed. R. Civ. 7 | P. 41); General Order 662, Coronavirus Public Emergency Authorizing Video-Teleconferencing 8 || and Telephone Conferencing for Criminal Proceedings Under Section 15002 of the Coronavirus 9 | Aid, Relief, and Economic Security (CARES) Act (E.D. Cal. Mar. 24, 2023); accord Atayde v. 10 | Napa State Hosp., No. 1:16-cv-00398-DAD-SAB, 2022 WL 1215234, at *1 (E.D. Cal. Apr. 25, 11 | 2022), recons. denied, 2022 WL 2392619 (E.D. Cal. July 1, 2022) (“This court’s 12 | overwhelming caseload has been well publicized and the long-standing lack of judicial resources 13 | in this district long-ago reached crisis proportion.”); Avery v. Stainer, No. 2:18-cv1302-JAM- 14 | ACP, 2020 WL 2857935, at *4 (E.D. Cal. Apr. 13, 2020) (“[P]laintiff is advised that the Eastern 15 | District of California maintains one of the heaviest caseloads in the nation, a significant portion of 16 | which is comprised of pro se inmate cases. This sometimes causes unavoidable delays in the 17 | resolution of individual matters.”). While the Court regrets the delay, the Court advises Plaintiff 18 | that the complaint will be screened in due course, as early as practicable. 19 Accordingly, it is hereby ORDERED that Plaintiff's motion for the appointment of 20 | counsel, (Doc. 14), is DENIED without prejudice. 21 | ITIS SOORDERED. ** | Dated: _May 25, 2023 | Wr bo 23 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28