(PC) Cisneros v. Muniz ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DANIEL CISNEROS, Case No. 1:22-cv-01601-HBK (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL 13 v. (Doc. No. 7) 14 JUAN MUNIZ, RAVIJOT GILL, MARIANA LOTERSZTAIN, MARIE 15 RUSSELL, CALIFORNIA DEPARTMENT OF CORRECTIONS 16 AND REHABILITATION, 17 Defendants. 18 19 Pending before the Court is Plaintiff’s motion to appoint counsel. (Doc. No. 7). Plaintiff, 20 a prisoner, is proceeding pro se on his First Amended Complaint filed January 12, 02023. (Doc. 21 No. 6). The Court granted Plaintiff application to proceed in this action in forma pauperis on 22 January 23, 2023. (Doc. No. 8). 23 The United States Constitution does not require appointment of counsel in civil cases. See 24 Lewis v. Casey, 518 U.S. 343, 354 (1996) (explaining Bounds v. Smith, 430 U.S. at 817, did not 25 create a right to appointment of counsel in civil cases). Under 28 U.S.C. § 1915, this court has 26 discretionary authority to appoint counsel for an indigent to commence, prosecute, or defend a 27 civil action. See 28 U.S.C. § 1915(e)(1) (stating the court has authority to appoint counsel for 28 people unable to afford counsel); see also United States v. McQuade, 519 F.2d 1180 (9th Cir. 1 1978) (addressing relevant standard of review for motions to appoint counsel in civil cases) (other 2 citations omitted). However, motions to appoint counsel in civil cases are granted only in 3 “exceptional circumstances.” Id. at 1181. The court may consider many factors to determine if 4 exceptional circumstances warrant appointment of counsel including, but not limited to, proof of 5 indigence, the likelihood of success on the merits, and the ability of the plaintiff to articulate his 6 or her claims pro se in light of the complexity of the legal issues involved. Id.; see also Rand v. 7 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds on reh’g en 8 banc, 154 F.2d 952 (9th Cir. 1998). 9 Plaintiff has not met his “burden of demonstrating exceptional circumstances.” Jones v. 10 Chen, 2014 WL 12684497, at *1 (E.D. Cal. Jan. 14, 2014). Plaintiff requests appointment of 11 counsel because he was unsuccessful in obtaining counsel on his own. (Doc. No. 7 at 2-4). 12 Plaintiff contacted six different attorneys, but he did not receive a response or was turned down 13 because the attorney did not handle prisoner civil rights cases. (Id.). Plaintiff’s inability to find 14 counsel is not “a proper factor for the Court to consider in determining whether to request 15 counsel.” Howard v. Hedgpeth, 2010 WL 1641087, at *2 (E.D. Cal. Apr. 20, 2010). 16 Plaintiff also requests appointment of counsel because he is “not knowledgeable in the law 17 and, had help to properly write up [his] 42 U.S.C. § 1983 complaint.” (Doc. No. 7 at 4:4-5). 18 Going hand-in-hand with not having sufficient legal knowledge, Plaintiff requests an appointed 19 counsel because he has limited access to the law library. (Id. at 4:7-12). Plaintiff explains that he 20 previously received assistance from an unidentified individual who is no longer at the same 21 facility as Plaintiff. (Id. at 4:5-6). “Circumstances common to most prisoners, such as lack of 22 legal education and limited law library access, do not establish exceptional circumstances that 23 warrant a request for voluntary assistance of counsel.” Baker v. Macomber, 2020 WL 1182495, 24 at *1 (E.D. Cal. Mar. 12, 2020). 25 Finally, Plaintiff explains that his complaint involves complex medical issues and possible 26 expert testimony. (Doc. No. 7 at 4:12-24). Plaintiff argues he should be appointed counsel 27 because counsel is better prepared to handle complex medical issues and cross examine expert 28 witnesses. (Id.). Prison litigation often involves medical claims, and an extraordinary situation 1 || cannot be demonstrated through the “vicissitudes of prison life.” Chaffer v. Prosper, 592 F.3d 2 || 1046, 1049 (9th Cir. 2010). Contrary to plaintiff's assertion, the court does not find the issues are 3 | “so complex that due process violations will occur absent the presence of counsel.” Bonin v. 4 | Vasquez, 999 F.2d 425, 428-29 (9th Cir. 1993). While the assistance of counsel during trial may 5 | be helpful, the “relevant consideration is not one of convenience” but rather exceptionalness. 6 | Howard v. Hedgpeth, 2010 WL 1641087, at *2 (E.D. Cal. Apr. 20, 2010). 7 While the procedural posture of this action is still in its infancy, Plaintiff has capably filed 8 | motions and a complaint. Plaintiff has not showed exceptional circumstances warrant 9 || appointment of counsel at this stage of the proceedings. Should this case progress and □□□□□□□□□□□ 10 || circumstances change so that he is able to demonstrate exceptional circumstances, he may renew 11 | his motion for appointment at counsel at that time. 12 Accordingly, it is ORDERED: 13 Plaintiff's motion for appointment of counsel (Doc. No. 7) is DENIED. 14 | Dated: __Jamuary 25, 2023 Wiha. Mh. Bareh Zaskth 16 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28