(PC) Gray v. Khoo ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DANA GRAY, ) Case No.: 1:20-cv-01047-SAB (PC) ) 12 Plaintiff, ) ) ORDER DENYING PLAINTIFF’S THIRD 13 v. ) MOTION FOR APPOINTMENT OF COUNSEL, WITHOUT PREJUDICE 14 A. KHOO, et al., ) ) (ECF No. 110) 15 Defendants. ) ) 16 ) 17 Plaintiff Dana Gray is proceeding pro se and in forma pauperis in this civil rights action 18 pursuant to 42 U.S.C. § 1983. 19 Currently before the Court is Plaintiff’s third motion for appointment of counsel, filed July 26, 20 2022. 21 As Plaintiff is aware, she does not have a constitutional right to appointed counsel in this 22 action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require any 23 attorney to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District 24 Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional 25 circumstances the court may request the voluntary assistance of counsel pursuant to section 26 1915(e)(1). Rand, 113 F.3d at 1525. 27 Without a reasonable method of securing and compensating counsel, the Court will seek 28 volunteer counsel only in the most serious and exceptional cases. In determining whether 1 || “exceptional circumstances exist, the district court must evaluate both the likelihood of success on the 2 || merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the 3 || legal issues involved.” Id. (internal quotation marks and citations omitted). 4 Here, Plaintiff seeks appointment of counsel to assist her in presenting her motion for 5 || reconsideration of the denial of the motion for substitution of parties. The Court does not find the 6 || required exceptional circumstances. Even if it assumed that Plaintiff is not well versed in the law anc 7 || that he has made serious allegations which, if proved, would entitle her to relief, her case is not 8 || exceptional. The Court is faced with similar cases almost daily. While the Court recognizes that 9 || Plaintiff is at a disadvantage due to his pro se status and her incarceration, the test is not whether 10 || Plaintiff would benefit from the appointment of counsel. See Wilborn v. Escalderon, 789 F.2d 1328, 11 |] 1331 (9th Cir. 1986) (“Most actions require development of further facts during litigation and a pro s 12 || litigant will seldom be in a position to investigate easily the facts necessary to support the case.”) Th 13 || test is whether exception circumstances exist and here, they do not. At this early stage of the 14 || proceedings, the Court cannot determine whether Plaintiff is likely to proceed on the merits of her 15 claim. Circumstances common to most prisoners, such as lack of legal education and limited law 16 || library access, do not establish exceptional circumstances that would warrant a request for voluntary 17 || assistance of counsel. Also, based on a review of the record in this case, the Court does not find that 18 || Plaintiff cannot adequately articulate her claims. Plaintiff has presented her motion for 19 || reconsideration of the denial of her motion for substitution of parties and the motion is pending 20 ||review. Plaintiff is advised that in ruling on any matters, the Court will thoroughly review the record 21 || of the case and research the relevant legal standards. Accordingly, Plaintiff's third motion for the 22 || appointment of counsel is denied, without prejudice. 23 24 ||} ITIS SO ORDERED. A (re 25 |I pated: _ July 27, 2022 OF 6 UNITED STATES MAGISTRATE JUDGE 27 28