(PC) Ellis v. Kern County Sheriff Department

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA CHARLES ELLIS, SR., No. 1:22cv-01209-JLT-SAB (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S THIRD MOTION FOR APPOINTMENT OF 13 v. COUNSEL, WITHOUT PREJUDICE KERN COUNTY SHERIFF (ECF No. 44) DEPARTMENT, et al., Defendants.

18 Plaintiff is proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983.

20 Currently before the Court is Plaintiff’s third motion for appointment of counsel, filed February 5, 2024. Plaintiff seeks appointment of counsel because he is incarcerated in a county jail and has limited legal knowledge and research capability.

23 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require any attorney to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 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.

1 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, the 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.” Id. (internal quotation marks and citations omitted).

6 In the present case, the Court does not find the required exceptional circumstances. Even if it assumed that Plaintiff is not well versed in the law and that he has made serious allegations which, if proved, would entitle him to relief, his case is not exceptional. The Court is faced with similar cases almost daily. While the Court recognizes that Plaintiff is at a disadvantage due to his pro se status and his incarceration, the test is not whether Plaintiff would benefit from the appointment of counsel. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (“Most actions require development of further facts during litigation and a pro se litigant will seldom be in a position to investigate easily the facts necessary to support the case.”) The test is whether exception circumstances exist and here, they do not. At this early stage of the proceedings, the Court cannot determine that Plaintiff is likely to succeed on the merits and the Court finds that Plaintiff had adequately litigated this action to date. Moreover, the fact an attorney may be better able to perform research, investigate, and represent Plaintiff does not change the analysis. There is little doubt most pro se litigants “find it difficult to articulate [their] claims,” and would be better served with the assistance of counsel. Wilborn, 789 F.2d at 1331. For this reason, in the absence of counsel, federal courts employ procedures which are highly protective of a pro se litigant's rights. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding pro se complaint to less stringent standard) (per curiam). In fact, where a plaintiff appears pro se in a civil rights case, the court must construe the pleadings liberally and afford the plaintiff any benefit of the doubt.

24 Karim–Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). The rule of liberal construction is “particularly important in civil rights cases.” Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). Thus, where a pro se litigant can “articulate his claims” in light of the relative complexity of the matter, the “exceptional circumstances” which might require the appointment of counsel do not exist. Wilborn, 789 F.2d at 1331; accord Palmer v. Valdez, 560 | F.3d 965, 970 (9th Cir. 2009). Accordingly, Plaintiff's third motion for the appointment of | counsel is denied, without prejudice.

4 IT IS SO ORDERED. □□ (Se | Dated: _February 7, 2024 OF ‘ UNITED STATES MAGISTRATE JUDGE