Opinion
Case No.: 1:20-cv-01047-DAD-SAB (PC)
02-26-2021
DANA GRAY, Plaintiff, v. A. KHOO, et al., Defendants.
ORDER DENYING PLAINTIFF'S MOTION FOR APPOINTMENT OF COUNSEL, WITHOUT PREJUDICE (ECF No. 34)
Plaintiff Dana Gray is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
Currently before the Court is Plaintiff's motion for appointment of counsel, filed February 25, 2021.
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.
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).
Here, Plaintiff seeks appointment of counsel due to her physical pain and the current COVID-19 pandemic. However, 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 her to relief, her 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 her 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 whether Plaintiff is likely to proceed on the merits of her claim. Circumstances common to most prisoners, such as lack of legal education and limited law library access, do not establish exceptional circumstances that would warrant a request for voluntary assistance of counsel. Also, based on a review of the record in this case, the Court does not find that Plaintiff cannot adequately articulate her claims. There are currently no pending deadlines of which Plaintiff must comply, and if Plaintiff requires additional time to comply with any relevant deadlines and court orders due to her circumstances, she may request an extension of time when appropriate. Accordingly, Plaintiff's motion for the appointment of counsel is denied, without prejudice. IT IS SO ORDERED. Dated: February 26 , 2021
/s/_________
UNITED STATES MAGISTRATE JUDGE