(PC) L.C. Cunningham v. Martinez

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA L.C. CUNNINGHAM, Case No. 1:19-cv-01508-AWI-EPG (PC) Plaintiff, ORDER DENYING PLAINTIFF’S MOTION 13 FOR APPOINTMENT OF PRO BONO v. COUNSEL, WITHOUT PREJUDICE M. MARTINEZ, et al., (ECF No. 80)

Defendants.

18 L.C. Cunningham (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983.

20 On June 17, 2021, Plaintiff filed a motion for appointment of pro bono counsel. (ECF No. 80). Plaintiff asks for appointment of counsel because he is unable to afford counsel; because his imprisonment is greatly limiting his ability to litigate; because the issues involved in this case are complex and will require significant research and investigation; because he has limited access to the law library; because he is being denied access to the email system that allows him to review relevant law inside his cell by way of a tablet; because a trial in this case will likely involve conflicting testimony and counsel would better enable him to present evidence and cross examine witnesses; and because counsel would help him avoid criminal prosecution, which he is capable of facing because he has to testify at his deposition under oath.

1 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. | Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds, 154 F.3d 952 | (9th Cir. 1998), and the Court cannot require an attorney to represent Plaintiff pursuant to 28 4] US.C. § 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa, | 490 US. 296, 298 (1989). However, in certain exceptional circumstances the Court may request || 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 || volunteer counsel only in the most serious and exceptional cases. In determining whether | “exceptional circumstances exist, a district court must evaluate both the likelihood of success of || the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the || 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 || reviewed the record in this case, and at this time the Court is unable to make a determination that | Plaintiff is likely to succeed on the merits of his claims. Moreover, it appears that Plaintiff can || adequately articulate his claims.

16 Plaintiff is advised that he is not precluded from renewing his motion for appointment of || pro bono counsel at a later stage of the proceedings.

18 For the foregoing reasons, IT IS ORDERED that Plaintiff's motion for appointment of pro || bono counsel is DENIED without prejudice.

IT IS SO ORDERED.

22] Dated: _ June 21, 2021 Ise hey 73 UNITED STATES MAGISTRATE JUDGE