(PC) Washington v. Sutton ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ISAIAH WASHINGTON, 1:20-cv-00983 AWI-GSA-PC 12 Plaintiff, ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL 13 v. (ECF No. 39.) 14 SUTTON, et al., 15 Defendants. 16 17 On July 6, 2022, Plaintiff filed a motion seeking the appointment of counsel. Plaintiff 18 does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 113 19 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require an attorney to represent Plaintiff 20 pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern 21 District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the 22 Court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 23 F.3d at 1525. 24 Without a reasonable method of securing and compensating counsel, the Court will seek 25 volunteer counsel only in the most serious and exceptional cases. In determining whether 26 “exceptional circumstances exist, the district court must evaluate both the likelihood of success 27 of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 28 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 1 Plaintiff argues that there are exceptional circumstances in his case that the Court should 2 be advised of. He asserts that a lawyer would have knowledge about litigation that Plaintiff does 3 not, has better access to relevant legal materials, and is much more able to gather factual 4 information necessary for a trial. He also asserts that a lawyer has more training and is not 5 confined to prison. Plaintiff informs the court that it would be difficult for him to gather facts 6 and present evidence at trial. He alleges that he has made several attempts to obtain a lawyer, 7 without success, and he will be prejudiced at trial without counsel. Plaintiff also explains that it 8 will be difficult for him to participate in discovery. 9 These conditions, while challenging, are not exceptional circumstances under the law. At 10 this stage in the proceedings, the court cannot make a determination that plaintiff is likely to 11 succeed on the merits. While the court has found that Plaintiff states cognizable claims in the 12 complaint against defendants for use of excessive force (ECF. No. 17 at 13 ¶1), this is not a 13 determination that Plaintiff is likely to succeed on the merits. Moreover, based on the record in 14 this case, the court finds that Plaintiff can adequately articulate his claims and respond to court 15 orders. Further, the legal issue in this case, -- whether defendants used excessive force against 16 Plaintiff – is not complex. Therefore, Plaintiff’s motion shall be denied without prejudice to 17 renewal of the motion at a later stage of the proceedings. 18 Accordingly, for the foregoing reasons, Plaintiff’s motion for the appointment of counsel 19 is HEREBY DENIED, without prejudice. 20 21 IT IS SO ORDERED. 22 Dated: July 25, 2022 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28