(PC) Ellis v. Kern County Sheriff Department ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CHARLES ELLIS, SR., No. 1:22cv-01209-JLT-SAB (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S SECOND MOTION FOR APPOINTMENT OF 13 v. COUNSEL, WITHOUT PREJUDICE 14 KERN COUNTY SHERIFF (ECF No. 33) DEPARTMENT, et al., 15 Defendants. 16 17 18 Plaintiff is proceeding pro se and in forma pauperis in this civil rights action filed pursuant 19 to 42 U.S.C. § 1983. 20 Currently before the Court is Plaintiff’s second motion for appointment of counsel, filed 21 September 28, 2023. Plaintiff seeks appointment of counsel because he is incarcerated in a 22 county jail, he is suffering medical issues, and has limited legal knowledge and research 23 capability. 24 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 25 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require any attorney to 26 represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for 27 the Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional 28 circumstances the court may request the voluntary assistance of counsel pursuant to section 1 1915(e)(1). Rand, 113 F.3d at 1525. 2 Without a reasonable method of securing and compensating counsel, the court will seek 3 volunteer counsel only in the most serious and exceptional cases. In determining whether 4 “exceptional circumstances exist, the district court must evaluate both the likelihood of success 5 on the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 6 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 7 In the present case, the Court does not find the required exceptional circumstances. Even 8 if it assumed that Plaintiff is not well versed in the law and that he has made serious allegations 9 which, if proved, would entitle him to relief, his case is not exceptional. The Court is faced with 10 similar cases almost daily. While the Court recognizes that Plaintiff is at a disadvantage due to 11 his pro se status and his incarceration, the test is not whether Plaintiff would benefit from the 12 appointment of counsel. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (“Most 13 actions require development of further facts during litigation and a pro se litigant will seldom be 14 in a position to investigate easily the facts necessary to support the case.”) The test is whether 15 exception circumstances exist and here, they do not. At this early stage of the proceedings, the 16 Court cannot determine that Plaintiff is likely to succeed on the merits and the Court finds that 17 Plaintiff had adequately litigated this action to date. Moreover, the fact an attorney may be better 18 able to perform research, investigate, and represent Plaintiff does not change the analysis. There 19 is little doubt most pro se litigants “find it difficult to articulate [their] claims,” and would be 20 better served with the assistance of counsel. Wilborn, 789 F.2d at 1331. For this reason, in the 21 absence of counsel, federal courts employ procedures which are highly protective of a pro se 22 litigant's rights. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding pro se complaint to less 23 stringent standard) (per curiam). In fact, where a plaintiff appears pro se in a civil rights case, the 24 court must construe the pleadings liberally and afford the plaintiff any benefit of the doubt. 25 Karim–Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). The rule of liberal 26 construction is “particularly important in civil rights cases.” Ferdik v. Bonzelet, 963 F.2d 1258, 27 1261 (9th Cir. 1992). Thus, where a pro se litigant can “articulate his claims” in light of the 28 relative complexity of the matter, the “exceptional circumstances” which might require the 1 | appointment of counsel do not exist. Wilborn, 789 F.2d at 1331; accord Palmer v. Valdez, 560 2 | F.3d 965, 970 (9th Cir. 2009). Accordingly, Plaintiffs second motion for the appointment of 3 | counsel is denied, without prejudice. 4 5 IT IS SO ORDERED. FA. ee 6 | Dated: _ October 2, 2023 4 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28