(PC) Duley v. Rizk ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KELLY DULEY, Case No. 1:24-cv-00345-HBK 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL 13 v. (Doc. No. 13) 14 RIZK et al., 15 Defendants. 16 17 18 Pending before the Court is Plaintiff’s Motion for Appointment of Counsel filed on June 19 24, 2024. (Doc. No. 11, “Motion”). Plaintiff Kelly Duley, a state prisoner, initiated this action by 20 filing a pro se civil rights complaint pursuant to 42 U.S.C. § 1983 on March 22, 2024. (Doc. No. 21 1, “the Complaint”). The Court granted Plaintiff’s application to proceed in this action in forma 22 pauperis in this action. (Doc. No. 6). Plaintiff is proceeding on his First Amended Complaint, 23 which remains subject to screening by the Court. (Doc. No. 10). 24 Plaintiff’s Motion identifies the following reasons why counsel should be appointed: (i) 25 Plaintiff is indigent and proceeding in forma pauperis; (ii) Plaintiff cannot adequately participate 26 in “investigation and discovery” while incarcerated; (iii) Plaintiff has never been a civil litigant 27 before and believes the issues are complex; (iv) a trial will have conflicting testimony and cross- 28 examination; and (v) Plaintiff has been unable to obtain counsel on his own. (Doc. No. 11). 1 The United States Constitution does not require appointment of counsel in civil cases. See 2 Lewis v. Casey, 518 U.S. 343, 354 (1996) (explaining Bounds v. Smith, 430 U.S. 817 (1996) did 3 not create a right to appointment of counsel in civil cases). Under 28 U.S.C. § 1915, this court 4 has discretionary authority to appoint counsel for an indigent to commence, prosecute, or defend 5 a civil action. See 28 U.S.C. § 1915(e)(1) (stating the court has authority to appoint counsel for 6 people unable to afford counsel); see also United States v. McQuade, 519 F.2d 1180 (9th Cir. 7 1978) (addressing relevant standard of review for motions to appoint counsel in civil cases) (other 8 citations omitted). Notably, motions to appoint counsel in civil cases are granted only in 9 “exceptional circumstances.” Id. at 1181. The court may consider many factors to determine if 10 exceptional circumstances warrant appointment of counsel including, but not limited to, proof of 11 indigence, the likelihood of success on the merits, and the ability of the plaintiff to articulate his 12 or her claims pro se in light of the complexity of the legal issues involved. Id.; see also Rand v. 13 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds on reh’g en 14 banc, 154 F.2d 952 (9th Cir. 1998). 15 Plaintiff has not met his “burden of demonstrating exceptional circumstances” for the 16 reasons outlined below. Jones v. Chen, 2014 WL 12684497, at *1 (E.D. Cal. Jan. 14, 2014). 17 The fact that Plaintiff cannot afford legal counsel, does not qualify “as an exceptional 18 circumstance in a prisoner civil rights case.” Montano v. Solomon, 2010 WL 2403389, at *2 19 (E.D. Cal. June 11, 2010). And although the Court granted Plaintiff’s motion to proceed in forma 20 pauperis, Plaintiff's indigence alone does not entitle him to appointment of counsel. See 21 Callender v. Ramm, 2018 WL 6448536, at *3 (E.D. Cal. Dec. 10, 2018). Further, Plaintiff’s 22 ability to litigate while incarcerated are normal challenges faced by all prisoners and other pro se 23 litigants, and do not warrant appointment of counsel. Siglar v. Hopkins, 822 F. App'x 610, 612 24 (9th Cir. 2020) (denying appointment of counsel because the plaintiff’s “circumstances were not 25 exceptionally different from the majority of the challenges faced by pro se litigants.”). 26 Challenges conducting discovery and preparing for trial “are ordinary for prisoners pursuing civil 27 rights claim” and cannot form the basis for appointment of counsel. Courtney v. Kandel, 2020 28 WL 1432991, at *1 (E.D. Cal. Mar. 24, 2020). Contrary to Plaintiff’s assessment, this case is not 1 | acomplex case. This case involves allegations of deliberate medical indifference and excessive 2 | force by a medical doctor in connection with the biopsy and follow up treatment of a skin lesion 3 | on Plaintiffs left shoulder. (Doc. No. 1 at 3-6). Thus, the Court does not find the issues are “so 4 | complex that due process violations will occur absent the presence of counsel.” Bonin v. 5 | Vasquez, 999 F.2d 425, 428-29 (9th Cir. 1993). Plaintiff's contention that legal counsel will be 6 | necessary in case of a trial, does not demonstrate exceptional circumstances. This case is at the 7 | early stages of litigation. And, while the assistance of counsel during trial may be helpful, the 8 | “relevant consideration is not one of convenience” but rather exceptionalness. Howard v. 9 | Hedgpeth, 2010 WL 1641087, at *2 (E.D. Cal. Apr. 20, 2010). Finally, Plaintiffs inability to 10 | obtain counsel is not “a proper factor for the Court to consider in determining whether to request 11 | counsel.” Jd. at *2. 12 Plaintiff has capably filed pleadings and complied with Court Orders. Plaintiff's First 13 | Amended Complaint remains subject to screening so the Court cannot at this stage assess whether 14 | Plaintiff can show a likelihood of success on the merits at this early stage. Should this case 15 | progress and Plaintiffs circumstances change so that he is able to demonstrate exceptional 16 | circumstances, he may renew his motion for appointment of counsel at a later time. 17 Accordingly, it is ORDERED: 18 Plaintiff's motion for appointment of counsel (Doc. No. 11) is DENIED without 19 | prejudice. 20 | Dated: _ June 28, 2024 Mile. Wh. foareh fackte 22 HELENA M. BARCH-KUCHTA 33 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28