1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANDRE LEIVA, Case No.: 1:23-cv-00738-JLT-EGC (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL 13 v. (Doc. 43) 14 I. CASANOVA, et al.,
15 Defendants.
17 Plaintiff Andre Leiva is appearing pro se and in forma pauperis in this civil rights action 18 pursuant to 42 U.S.C. section 1983. 19 I. INTRODUCTION 20 On April 27, 2026, Plaintiff filed a document titled “Plaintiffs Notice of Motion and 21 Motion for Request for appointed counsel, [Response] to defendants motion for summary 22 judgment, and confirmation of time [extension].”1 (Doc. 43.) In relevant part, Plaintiff states that 23 “[d]ue to the severity, and complexity” of this matter, he has “attempted to obtain [counsel 24 himself] with no avail.” (Id.) 25 // 26
27 1 Plaintiff’s filing also opposes Defendants’ pending summary judgment motion concerning exhaustion. (See Doc. 43.) Even so, on April 24, 2026, the Court granted Plaintiff’s motion (dated 4/17/26 & filed 4/22/26) for an extension 1 II. DISCUSSION 2 Plaintiffs do not have a constitutional right to appointed counsel in section 1983 actions. 3 Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on other grounds, 154 F.3d 4 952, 954 n.1 (9th Cir. 1998). Nor can the Court require an attorney to represent a party under 28 5 U.S.C. § 1915(e)(1). See Mallard v. U.S. Dist. Court, 490 U.S. 296, 304-05 (1989). However, in 6 “exceptional circumstances,” the Court may request the voluntary assistance of counsel pursuant 7 to section 1915(e)(1). Rand, 113 F.3d at 1525. 8 Given that the Court has no reasonable method of securing and compensating counsel, the 9 Court will seek volunteer counsel only in extraordinary cases. In determining whether 10 “exceptional circumstances exist, a district court must evaluate both the likelihood of success on 11 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 12 complexity of the legal issues involved.” Rand, 113 F.3d at 1525 (internal quotation marks & 13 citations omitted). 14 First, the Court must evaluate the likelihood of Plaintiff’s success on the merits of his 15 claims. Rand, 113 F.3d at 1525. Here, a determination concerning the likelihood of success on the 16 merits is premature. The Court issued its Discovery and Scheduling Order on January 6, 2026 17 (see Doc. 30), and discovery is ongoing. See Serrano v. Rudas, No. 1:22-cv-00950-KES-CDB, 18 2024 WL 4190106, at *1 (E.D. Cal. Sept. 13, 2024) (“A merits-based determination largely is 19 premature as discovery is ongoing in this action, particularly given Plaintiff's failure to argue he is 20 likely to prevail on his claims”); Garcia v. Blahnik, No. 14cv875-LAB-BGS, 2016 WL 4269561, 21 at *1 (S.D. Cal. Aug. 15, 2016) (“Where the court has insufficient information to determine the 22 likelihood of success, the likelihood of success factor does not support a finding of exceptional 23 circumstances”). 24 Next, the Court must also evaluate Plaintiff’s ability to articulate his claims pro se 25 considering the complexity of the legal issues involved. Rand, 113 F.3d at 1525. This action 26 proceeds on Plaintiff’s Eighth Amendment deliberate indifference to serious medical needs 27 claims against Defendants Casanova, Mansour, and Pallomina. (See Doc. 11 at 10.) Those claims 1 have limited knowledge of the law, the Court does not find the issues in this case “so complex 2 that due process violations will occur absent the presence of counsel”); LaMere v. Risley, 827 3 F.2d 622, 626 (9th Cir. 1987) (affirming district court’s denial of request for appointment of 4 counsel, where pleadings demonstrated LaMere had “a good understanding of the issues and the 5 ability to present forcefully and coherently his contentions”); Maldanado v. Merritt, No. 1:23-cv- 6 00482-JLT-SKO PC, 2023 WL 6751114, at *3 (E.D. Cal. Oct. 12, 2023) (“Eighth Amendment 7 deliberate indifference to serious medical needs claims are not complex”); Lane v. Beach, No. 8 1:20-cv-00147-JLT-GSA-PC, 2023 WL 4936300, at *1 (E.D. Cal. Aug. 2, 2023) (“whether 9 defendant Beach was deliberately indifferent to Plaintiff’s serious medical needs … is not 10 complex”); Ireland v. Solano County Jail, No. CV-08-2707-LRS, 2010 WL 367776, at *1 (E.D. 11 Cal. Jan. 26, 2010) (same). And a review of the docket for this action reveals Plaintiff has no 12 difficulty responding to Court orders and has recently filed an opposition to Defendants’ pending 13 summary judgment motion regarding the exhaustion of administrative remedies. (See Docs. 25- 14 26, 31-32, 39-40, 43 [opposition portion of filing].) 15 Next, while the Court appreciates Plaintiff’s efforts to secure counsel, Plaintiff is advised 16 that an inability to find counsel is not “a proper factor for the Court to consider in determining 17 whether to request counsel.” See Howard v. Hedgpeth, No. 1:08-cv-00859-RTB-PCL 2010 WL 18 1641087, at *2 (E.D. Cal. Apr. 20, 2010). 19 Plaintiff is further advised that indigence and incarceration do not amount to exceptional 20 circumstances. See, e.g., Suarez v. Clark, No. 1:22-cv-00160-JLT-SAB (PC), 2024 WL 477982, 21 at *1 (E.D. Cal. Jan. 25, 2024) (“the Court has ‘repeatedly’ held incarceration’s challenges on 22 litigation do not constitute an exceptional circumstance. [] If Plaintiff’s incarceration was an 23 exceptional circumstance, any prisoner would be entitled to counsel”); Dijkstra v. Campos, No. 24 1:21-cv-01223-HBK, 2022 WL 222518, at *1 (E.D. Cal. Jan. 25, 2022) (“Plaintiff's indigence 25 does not qualify ‘as an exceptional circumstance in a prisoner civil rights case’”); Gipbsin v. 26 Kernan, No. 2:12-cv-0556 KJM DB P, 2021 WL 242570, at *2 (E.D. Cal. Jan. 25, 2021) 27 (“Plaintiff's inability to afford counsel has no bearing on either his likelihood of success on the 1 | ACP, 2018 WL 6448536, at *3 (E.D. Cal. Dec. 10, 2018) (“The law is clear: neither □□□□□□□□□□ 2 | indigence, nor his lack of education, nor his lack of legal expertise warrant the appointment of 3 | counsel”). Further, “[c]ircumstances common to most prisoners, such as a deficient general 4 | education, lack of knowledge of the law, mental illness and disability, do not in themselves 5 | establish exceptional circumstances warranting appointment of voluntary civil counsel.” Jones v. 6 | Kuppinger, No. 2:13-cv-0451 WBS AC P, 2015 WL 5522290, at *3-4 (E.D. Cal. Sept. 17, 2015). 7 There is little doubt most pro se litigants “find it difficult to articulate [their] claims,” and 8 || would be better served with the assistance of counsel. Wilborn v. Escalderon, 789 F.2d 1328, 9 | 1331 (9th Cir. 1986). For this reason, in the absence of counsel, federal courts employ procedures 10 | which are highly protective of a pro se litigant’s rights. See Haines v. Kerner, 404 U.S. 519, 520 11 | (1972) (holding pro se complaint to less stringent standard) (per curiam). Where a plaintiff 12 || appears pro se in a civil rights case, the court must construe the pleadings liberally and afford the 13 | plaintiff any benefit of the doubt. Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 623 14 | (9th Cir. 1988). The rule of liberal construction is “particularly important in civil rights cases.” 15 | Ferdik v.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANDRE LEIVA, Case No.: 1:23-cv-00738-JLT-EGC (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL 13 v. (Doc. 43) 14 I. CASANOVA, et al.,
15 Defendants.
17 Plaintiff Andre Leiva is appearing pro se and in forma pauperis in this civil rights action 18 pursuant to 42 U.S.C. section 1983. 19 I. INTRODUCTION 20 On April 27, 2026, Plaintiff filed a document titled “Plaintiffs Notice of Motion and 21 Motion for Request for appointed counsel, [Response] to defendants motion for summary 22 judgment, and confirmation of time [extension].”1 (Doc. 43.) In relevant part, Plaintiff states that 23 “[d]ue to the severity, and complexity” of this matter, he has “attempted to obtain [counsel 24 himself] with no avail.” (Id.) 25 // 26
27 1 Plaintiff’s filing also opposes Defendants’ pending summary judgment motion concerning exhaustion. (See Doc. 43.) Even so, on April 24, 2026, the Court granted Plaintiff’s motion (dated 4/17/26 & filed 4/22/26) for an extension 1 II. DISCUSSION 2 Plaintiffs do not have a constitutional right to appointed counsel in section 1983 actions. 3 Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on other grounds, 154 F.3d 4 952, 954 n.1 (9th Cir. 1998). Nor can the Court require an attorney to represent a party under 28 5 U.S.C. § 1915(e)(1). See Mallard v. U.S. Dist. Court, 490 U.S. 296, 304-05 (1989). However, in 6 “exceptional circumstances,” the Court may request the voluntary assistance of counsel pursuant 7 to section 1915(e)(1). Rand, 113 F.3d at 1525. 8 Given that the Court has no reasonable method of securing and compensating counsel, the 9 Court will seek volunteer counsel only in extraordinary cases. In determining whether 10 “exceptional circumstances exist, a district court must evaluate both the likelihood of success on 11 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 12 complexity of the legal issues involved.” Rand, 113 F.3d at 1525 (internal quotation marks & 13 citations omitted). 14 First, the Court must evaluate the likelihood of Plaintiff’s success on the merits of his 15 claims. Rand, 113 F.3d at 1525. Here, a determination concerning the likelihood of success on the 16 merits is premature. The Court issued its Discovery and Scheduling Order on January 6, 2026 17 (see Doc. 30), and discovery is ongoing. See Serrano v. Rudas, No. 1:22-cv-00950-KES-CDB, 18 2024 WL 4190106, at *1 (E.D. Cal. Sept. 13, 2024) (“A merits-based determination largely is 19 premature as discovery is ongoing in this action, particularly given Plaintiff's failure to argue he is 20 likely to prevail on his claims”); Garcia v. Blahnik, No. 14cv875-LAB-BGS, 2016 WL 4269561, 21 at *1 (S.D. Cal. Aug. 15, 2016) (“Where the court has insufficient information to determine the 22 likelihood of success, the likelihood of success factor does not support a finding of exceptional 23 circumstances”). 24 Next, the Court must also evaluate Plaintiff’s ability to articulate his claims pro se 25 considering the complexity of the legal issues involved. Rand, 113 F.3d at 1525. This action 26 proceeds on Plaintiff’s Eighth Amendment deliberate indifference to serious medical needs 27 claims against Defendants Casanova, Mansour, and Pallomina. (See Doc. 11 at 10.) Those claims 1 have limited knowledge of the law, the Court does not find the issues in this case “so complex 2 that due process violations will occur absent the presence of counsel”); LaMere v. Risley, 827 3 F.2d 622, 626 (9th Cir. 1987) (affirming district court’s denial of request for appointment of 4 counsel, where pleadings demonstrated LaMere had “a good understanding of the issues and the 5 ability to present forcefully and coherently his contentions”); Maldanado v. Merritt, No. 1:23-cv- 6 00482-JLT-SKO PC, 2023 WL 6751114, at *3 (E.D. Cal. Oct. 12, 2023) (“Eighth Amendment 7 deliberate indifference to serious medical needs claims are not complex”); Lane v. Beach, No. 8 1:20-cv-00147-JLT-GSA-PC, 2023 WL 4936300, at *1 (E.D. Cal. Aug. 2, 2023) (“whether 9 defendant Beach was deliberately indifferent to Plaintiff’s serious medical needs … is not 10 complex”); Ireland v. Solano County Jail, No. CV-08-2707-LRS, 2010 WL 367776, at *1 (E.D. 11 Cal. Jan. 26, 2010) (same). And a review of the docket for this action reveals Plaintiff has no 12 difficulty responding to Court orders and has recently filed an opposition to Defendants’ pending 13 summary judgment motion regarding the exhaustion of administrative remedies. (See Docs. 25- 14 26, 31-32, 39-40, 43 [opposition portion of filing].) 15 Next, while the Court appreciates Plaintiff’s efforts to secure counsel, Plaintiff is advised 16 that an inability to find counsel is not “a proper factor for the Court to consider in determining 17 whether to request counsel.” See Howard v. Hedgpeth, No. 1:08-cv-00859-RTB-PCL 2010 WL 18 1641087, at *2 (E.D. Cal. Apr. 20, 2010). 19 Plaintiff is further advised that indigence and incarceration do not amount to exceptional 20 circumstances. See, e.g., Suarez v. Clark, No. 1:22-cv-00160-JLT-SAB (PC), 2024 WL 477982, 21 at *1 (E.D. Cal. Jan. 25, 2024) (“the Court has ‘repeatedly’ held incarceration’s challenges on 22 litigation do not constitute an exceptional circumstance. [] If Plaintiff’s incarceration was an 23 exceptional circumstance, any prisoner would be entitled to counsel”); Dijkstra v. Campos, No. 24 1:21-cv-01223-HBK, 2022 WL 222518, at *1 (E.D. Cal. Jan. 25, 2022) (“Plaintiff's indigence 25 does not qualify ‘as an exceptional circumstance in a prisoner civil rights case’”); Gipbsin v. 26 Kernan, No. 2:12-cv-0556 KJM DB P, 2021 WL 242570, at *2 (E.D. Cal. Jan. 25, 2021) 27 (“Plaintiff's inability to afford counsel has no bearing on either his likelihood of success on the 1 | ACP, 2018 WL 6448536, at *3 (E.D. Cal. Dec. 10, 2018) (“The law is clear: neither □□□□□□□□□□ 2 | indigence, nor his lack of education, nor his lack of legal expertise warrant the appointment of 3 | counsel”). Further, “[c]ircumstances common to most prisoners, such as a deficient general 4 | education, lack of knowledge of the law, mental illness and disability, do not in themselves 5 | establish exceptional circumstances warranting appointment of voluntary civil counsel.” Jones v. 6 | Kuppinger, No. 2:13-cv-0451 WBS AC P, 2015 WL 5522290, at *3-4 (E.D. Cal. Sept. 17, 2015). 7 There is little doubt most pro se litigants “find it difficult to articulate [their] claims,” and 8 || would be better served with the assistance of counsel. Wilborn v. Escalderon, 789 F.2d 1328, 9 | 1331 (9th Cir. 1986). For this reason, in the absence of counsel, federal courts employ procedures 10 | which are highly protective of a pro se litigant’s rights. See Haines v. Kerner, 404 U.S. 519, 520 11 | (1972) (holding pro se complaint to less stringent standard) (per curiam). Where a plaintiff 12 || appears pro se in a civil rights case, the court must construe the pleadings liberally and afford the 13 | plaintiff any benefit of the doubt. Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 623 14 | (9th Cir. 1988). The rule of liberal construction is “particularly important in civil rights cases.” 15 | Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). 16 The test is not whether Plaintiff would benefit from the appointment of counsel; the test is 17 | whether exceptional circumstances exist. See Wilborn, 789 F.2d at 1331. Here, no exceptional 18 | circumstances exist warranting the appointment of counsel. Rand, 113 F.3d at 1525. 19 Il. CONCLUSION AND ORDER 20 For the foregoing reasons, the Court HEREBY ORDERS that Plaintiff's motion or 21 | request for the appointment of counsel (Doc. 43) is DENIED. 22 73 IT IS SO ORDERED. . 24 | Dated: _ May 5, 2026 C uit Qu | Cay (lo 05 UNITED STATES MAGISTRATE JUDGE
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