(PC) Washington v. Yaplee ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT WASHINGTON, Case No. 1:20-cv-01356-EPG (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION 13 FOR APPOINTMENT OF PRO BONO v. COUNSEL, WITHOUT PREJUDICE 14 STEVEN M. YAPLEE, (ECF No. 47) 15 Defendant. 16 17 18 Robert Washington (“Plaintiff”) is a state prisoner proceeding pro se and in forma 19 pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. 20 On August 1, 2022, Plaintiff filed a motion for appointment of pro bono counsel. (ECF 21 No. 47). Plaintiff asks for appointment of counsel because he is unable to afford counsel; because 22 the issues involved in this case are complex; because Plaintiff is “under” the Americans with 23 Disabilities Act; because the paralegal that Plaintiff asked to help him backed out after agreeing 24 to help; because Plaintiff has no knowledge of the law or federal court rules; because this case 25 involves medical issues that may require expert testimony; because Plaintiff has demanded a jury 26 trial; because this case will require depositions of witnesses; because the testimony in this case 27 will be in sharp conflict; because Plaintiff has no high school education and no legal education; 28 and because Plaintiff’s case has merit. 1 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 2 | Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds, 154 F.3d 952 3 | (9th Cir. 1998), and the Court cannot require an attorney to represent Plaintiff pursuant to 28 4} USC. § 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa, 5 | 490 US. 296, 298 (1989). However, in certain exceptional circumstances the Court may request 6 | the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. 7 Without a reasonable method of securing and compensating counsel, the Court will seek 8 | volunteer counsel only in the most serious and exceptional cases. In determining whether 9 | “exceptional circumstances exist, a district court must evaluate both the likelihood of success of 10 | the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 11 | complexity of the legal issues involved.” Id. (citation and internal quotation marks omitted). 12 The Court will not order appointment of pro bono counsel at this time. The Court has 13 || reviewed the record in this case, and at this time the Court is unable to make a determination that 14 | Plaintiff is likely to succeed on the merits of his claim. Moreover, it appears that Plaintiff can 15 || adequately articulate his claim. 16 The Court notes that Defendant filed a motion for summary judgment (ECF No. 37), and 17 | Plaintiff has already filed his opposition (ECF No. 45). If the motion for summary judgment is 18 || denied, Plaintiff may renew his motion for appointment of pro bono counsel. 19 For the foregoing reasons, IT IS ORDERED that Plaintiff's motion for appointment of pro 20 | bono counsel is DENIED without prejudice. 21 0 IT IS SO ORDERED. 23 | Dated: _ August 2, 2022 [see ey UNITED STATES MAGISTRATE JUDGE 25 26 27 28