(PC) Davis v. Portillo

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA CHRISTOPHER BRANDON DAVIS, Case No.: 1:22-cv-00457 AWI-BAK (HBK) (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION 13 v. TO APPOINT COUNSEL M. PORTILLO, et al., (Doc. No. 13) 15 Defendants.

17 Plaintiff Christopher Brandon Davis is proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983.

19 I. INTRODUCTION 20 On May 10, 2022, Plaintiff filed a motion to appoint counsel, stating he is unable to afford counsel and has requested leave to proceed in forma pauperis.1 (Doc. No. 13.) Plaintiff contends “imprisonment will greatly limit his ability to litigate” and that the “issues involved in this case are complex and will require significant research and investigation.” (Id. at 1.) Further, Plaintiff states a trial “will likely involve conflicting testimony, and counsel would better enable Plaintiff to present evidence and call/cross examine multiple witnesses.” (Id. at 1-2.) Plaintiff states the action involves multiple defendants and “spans several months in time, which includes outside investigative services from outside agencies.” (Id. at 2.) Finally, Plaintiff states that despite his “repeated efforts to obtain a lawyer,” he has received only one response to his written inquiries.

2 (Id.) Plaintiff appended as an exhibit to his motion a letter from the American Civil Liberties Union Foundation Northern California, indicating it was unable to offer him legal assistance or presentation. (Id. at 3-4.)

5 II. DISCUSSION 6 Plaintiff does not have a constitutional right to appointed counsel in § 1983 actions. Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds on reh'g en banc, 154 F.2d 952 (9th Cir. 1998). Additionally, the Court cannot require an attorney to represent a party under 28 U.S.C. § 1915(e)(1). See Mallard v. U.S. Dist. Court, 490 U.S. 296, 304-05 (1989). However, in “exceptional circumstances,” the Court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525.

12 Given that the Court has no reasonable method of securing and compensating counsel, the Court will seek volunteer counsel only in extraordinary cases. In determining whether “exceptional circumstances exist, a district court must evaluate both the likelihood of success on the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the legal issues involved.” Rand, 113 F.3d at 1525 (internal quotation marks & citations omitted).

18 In the present case, the Court does not find the required exceptional circumstances.

19 Plaintiff’s inability to find counsel is not “a proper factor for the Court to consider in determining whether to request counsel.” Howard v. Hedgpeth, 2010 WL 1641087, at *2 (E.D. Cal. Apr. 20, 2010). Even if it is assumed that Plaintiff is not well versed in the law and has made serious allegations that, if proven, would entitle him to relief, Plaintiff’s case is not extraordinary. The Court is faced with similar cases almost daily. Although plaintiff is proceeding pro se and is incarcerated, he faces the same obstacles all pro se prisoners face. Challenges conducting discovery and preparing for trial “are ordinary for prisoners pursuing civil rights claim” and cannot form the basis for appointment of counsel. Courtney v. Kandel, 2020 WL 1432991, at *1 (E.D. Cal. Mar. 24, 2020). In addition, at this stage in the proceedings, the Court cannot | record in this case, the Court is unable to find that Plaintiff cannot adequately articulate his | claims.

3 I. CONCLUSION AND ORDER 4 Should this case progress and Plaintiff's circumstances change so that he is able to | demonstrate exceptional circumstances, he may renew his motion for appointment at counsel at | that time.

7 Accordingly, it is hereby ORDERED: 8 Plaintiff's motion for appointment of counsel (Doc. No. 13) is DENIED, without | prejudice. "| Dated: _ June 15,2022 Wile. Wh. arch Yack 12 HELENA M. BARCH-KUCHTA 3 UNITED STATES MAGISTRATE JUDGE