Blacher v. Diaz

• Court: District Court, S.D. California
• Decided: February 4, 2021
• Docket: 3:20-cv-01270
• Status: Unknown

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 MARLON BLACHER, Case No.: 20cv1270-LAB-MDD

11 Plaintiff, ORDER DENYING PLAINTIFF’S 12 v. MOTION TO APPOINT COUNSEL

13 RALPH DIAZ, et al., [ECF No. 22] Defendants. 14 15 16 On February 1, 2021, Plaintiff, a state prisoner proceeding pro se and 17 in forma pauperis, moved the Court to appoint counsel. (ECF No. 22). In 18 support, Plaintiff explains that he has “no actual access to a law library” and 19 thus has no access to “document duplication service, pleading paper, ink pen, 20 means for legal research, etc.” (Id. at 1-2). Plaintiff further alleges mail 21 obstruction by the jail staff. (Id. at 2). Plaintiff argues that given his 22 incarceration and lack of legal training, he will not know the proper motions 23 or pleadings to file, and he will be unable to locate and interview witnesses. 24 (Id. at 3). 25 District courts lack authority to require counsel to represent indigent 26 prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 1 request the voluntary assistance of counsel pursuant to 28 U.S.C. § 2 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. 3 Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). The test for exceptional 4 circumstances requires the court to evaluate the plaintiff’s likelihood of 5 success on the merits and the ability of the plaintiff to articulate his claims 6 pro se in light of the complexity of the legal issues involved. See Wilborn v. 7 Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 8 952, 954 (9th Cir. 1983). 9 Circumstances common to most prisoners, such as lack of legal 10 education and limited law library access do not establish exceptional 11 circumstances that would warrant a request for voluntary assistance of 12 counsel. (ECF No. 22 at 1, 3); see e.g., Wood, 900 F.2d at 1335-36 (affirming 13 denial of appointment of counsel where plaintiff lacked legal education and 14 had limited law library access); Galvan v. Fox, No. 2:15-cv-01798-KJM (DB), 15 2017 U.S. Dist. LEXIS 56280, at *23 (E.D. Cal. Apr. 12, 2017). 16 The Court is sympathetic to Plaintiff’s challenges in litigating his 17 case while incarcerated. However, Plaintiff has not indicated exceptional 18 circumstances that would justify appointment of counsel. Although Plaintiff’s 19 remaining claims were sufficient to survive screening, Plaintiff has not yet 20 demonstrated a likelihood of success on the merits. See Wilborn, 789 F.2d at 21 1331. A review of Plaintiff’s Complaint indicates that Plaintiff is capable of 22 articulating and pursuing his remaining claims, which are not overly 23 complex. Further, the challenges described by Plaintiff are not related to the 24 complexity of the issues involved in Plaintiff’s case, but rather are the types 25 of challenges many pro se litigants face, as pro se litigants are rarely in a 26 position to easily investigate the facts necessary to support their cases. (ECF 1 |}experience, lack of knowledge regarding the use of expert witnesses, and 9 ||inability to locate and interview witnesses); see Wilborn, 789 F.2d 1328 at 3 1331 (affirming denial of appointment of counsel where the difficulties 4 || plaintiff experienced in litigating his case did not derive from the complexity 5 the issues in the case.). 6 Accordingly, the Court finds that Plaintiff has failed to plead facts 7 ||sufficient to show the “exceptional circumstances” required for appointment 8 ||of counsel pursuant to 28 U.S.C. § 1915(e)(1) and therefore DENIES without 9 || prejudice Plaintiff's Motion for Appointment of Counsel. 10 IT IS SO ORDERED. Dated: February 4, 2021 Mitel fou Hon. Mitchell D. Dembin 13 United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27