(PC) Montenegro v. Anthony ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JUAN M. MONTENEGRO, Case No. 1:21-cv-01449-JLT-HBK (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION TO APPOINT COUNSEL 13 v. (Doc. No. 12) 14 ANTHONY, GRISHAM, 15 Defendants. 16 17 Pending before the Court is Plaintiff’s motion to appoint counsel. (Doc. No. 12). 18 Plaintiff, a state prisoner, who is proceeding in forma pauperis, has pending a pro se civil rights 19 complaint filed pursuant to 42 U.S.C. § 1983 (Doc. Nos. 1, 4). Plaintiff seeks appointment of 20 counsel so that his “interests may be protected by the professional assistance required.” (Doc. 21 No. 12). Plaintiff also states that counsel must be appointed when the litigant is indigent and a 22 court issues an order to show cause citing to a California Rule of Court. (Id.). 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.” Jd. 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. Jd.; see also Rand v. 7 | Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds on reh’g en 8 | banc, 154 F.2d 952 (9th Cir. 1998). 9 Plaintiff has not met his “burden of demonstrating exceptional circumstances.”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's indigency alone does not 11 | qualify “as an exceptional circumstance in a prisoner civil rights case.” Montano v. Solomon, 12 | 2010 WL 2403389, at *2 (E.D. Cal. June 11, 2010); Callender v. Ramm, 2018 WL 6448536, at *3 13 | (E_D. Cal. Dec. 10, 2018). Moreover, the court has not issued an order to show cause. 14 | Irrespective, this case is in federal court and not state court, so the California Rules of Court do 15 || not apply to these proceedings. The Court has not yet screened Plaintiff's Complaint. Should 16 | this case progress and Plaintiffs circumstances change so that he is able to demonstrate 17 | exceptional circumstances, he may renew his motion for appointment at counsel at that time. 18 ACCORDINGLY, it is hereby ORDERED: 19 Plaintiff's motion for appointment of counsel (Doc. No. 12) is DENIED. 20 | Dated: _ July 25.2022 Mile. Wh. foareh fackte 22 HELENA M. BARCH-KUCHTA 33 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28