1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 EDWARD HARRY CONSTABLE, Case No.: 1:25-cv-00591-SKO 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION TO APPOINT COUNSEL 13 v. (Doc. 10) 14 KATHLEEN ALLISON, et al.,
15 Defendants. 16 17 Plaintiff Edward Harry Constable is appearing pro se and in forma pauperis in this civil 18 rights action pursuant to 42 U.S.C. section 1983. 19 I. INTRODUCTION 20 Plaintiff filed his original complaint on May 20, 2025. (Doc. 1.) The Court issued its First 21 Informational Order in Prisoner/Civil Detainee Civil Rights Case on May 22, 2025. (Doc. 3.) 22 On June 13, 2025, Plaintiff filed a first amended complaint (Doc. 8) and on August 1, 23 2025, the Clerk of the Court lodged a second amended complaint (Doc. 9). 24 On August 4, 2025, Plaintiff filed a document directed to Keith Holland, Clerk of the 25 Court, that was docketed as a motion to appoint counsel and notice. (Doc. 10.) 26 // 27 // // 1 II. DISCUSSION 2 Legal Standards Concerning the Appointment of Counsel 3 Plaintiffs do not have a constitutional right to appointed counsel in section 1983 actions. 4 Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on other grounds, 154 F.3d 5 952, 954 n.1 (9th Cir. 1998). Nor can the Court require an attorney to represent a party under 28 6 U.S.C. § 1915(e)(1). See Mallard v. U.S. Dist. Court, 490 U.S. 296, 304-05 (1989). However, in 7 “exceptional circumstances,” the Court may request the voluntary assistance of counsel pursuant 8 to section 1915(e)(1). Rand, 113 F.3d at 1525. 9 Given that the Court has no reasonable method of securing and compensating counsel, the 10 Court will seek volunteer counsel only in extraordinary cases. In determining whether 11 “exceptional circumstances exist, a district court must evaluate both the likelihood of success on 12 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 13 complexity of the legal issues involved.” Rand, 113 F.3d at 1525 (internal quotation marks & 14 citations omitted). 15 Analysis 16 First, the Court must evaluate the likelihood of Plaintiff’s success on the merits of his 17 claims. Rand, 113 F.3d at 1525. Here, Plaintiff’s complaint has not yet been screened. Moreover, 18 at screening the Court determines whether a plaintiff has sufficiently and plausibly alleged a 19 cause of action or claim entitling the plaintiff to relief. The merits of the allegations are not tested 20 at screening because the Court is required to consider factual allegations to be true for purposes of 21 screening. At this stage of the proceedings, a likelihood of success on the merits cannot be 22 determined. See, e.g., Porter v. Rivas, No. 1:23-cv-00105- ADA-CDB (PC), 2023 WL 4765492, 23 at *1 (E.D. Cal. July 26, 2023) (“A likelihood of success on the merits determination is not the 24 same as that required at screening; at screening, the Court is tasked with determining whether a 25 plaintiff has sufficiently and plausibly alleged a cause of action or claim entitling the plaintiff to 26 relief. The merits of the allegations are not tested, for the Court is to consider factual allegations 27 to be true for purposes of screening”). 1 Next, the Court must also evaluate Plaintiff’s ability to articulate his claims pro se 2 considering the complexity of the legal issues involved. Rand, 113 F.3d at 1525. A brief review 3 of Plaintiff’s original and first amended complaints reveals he asserts Eighth Amendment 4 excessive force claims against the name defendants. (See Doc. 1 at 5 & Doc. 8 at 3.) Such claims 5 are not complex. See Maldanado v. Merritt, No. 1:23-cv-00482-JLT-SKO PC, 2023 WL 6 6751114, at *3 (E.D. Cal. Oct. 12, 2023) (“Eighth Amendment deliberate indifference to serious 7 medical needs claims are not complex”); Andre-Gollihar v. County of San Joaquin, No. 2:09-cv- 8 03313 MCE KJN PS, 2010 WL 2925358, at *2 (E.D. Cal. July 26, 2010) (“plaintiff's claims of 9 excessive force and wrongful death are not complex”); Crawford v. Hughes, No. 13-CV-6638- 10 FPG, 2017 WL 130273, at *3 (W.D.N.Y. Jan. 13, 2017) (“the issues in this case—namely, the 11 alleged use of excessive force, discrimination, and denial of due process at a disciplinary 12 hearing—are not complex”); Arroy v. Jeffries, No. 23-1129, 2023 WL 3010154, at *4 (C.D. Ill. 13 Apr. 19, 2023) (denying motion for appointment of counsel and finding “Plaintiff’s failure to 14 protect claim is not complex”). 15 Plaintiff is advised that incarceration is not an exceptional circumstance warranting the 16 appointment of counsel. See Suarez v. Clark, No. 1:22-cv-00160-JLT-SAB (PC), 2024 WL 17 477982, at *1 (E.D. Cal. Jan. 25, 2024) (“the Court has ‘repeatedly’ held incarceration's 18 challenges on litigation do not constitute an exceptional circumstance. [] If Plaintiff's 19 incarceration was an exceptional circumstance, any prisoner would be entitled to counsel”). Nor 20 are a lack of legal knowledge and limited law library access exceptional circumstances; rather, 21 they are circumstances common to nearly all pro se prisoner litigants. See, e.g., Escamilla v. 22 Oboyle, No. 2:22-cv-2038 KJM AC P, 2023 WL 2918028, at *1 (E.D. Cal. Apr. 12, 2023) 23 (“Circumstances common to most prisoners, such as a lack of legal education and limited law 24 library access, do not establish exceptional circumstances that would warrant a request for 25 voluntary assistance of counsel”); Faultry v. Saechao, No. 2:18-cv-1850 KJM AC P, 2020 WL 26 2561596, at *2 (E.D. Cal., May 20, 2020) (same); Callender v. Ramm, No. 2:16-cv-0694 JAM 27 AC P, 2018 WL 6448536, at *3 (E.D. Cal. Dec. 10, 2018) (“The law is clear: neither plaintiff's 1 counsel”); Galvan v. Fox, No. 2:15-CV-01798-KJM (DB), 2017 WL 1353754, at *8 (E.D. Cal. 2 Apr. 12, 2017) (“Circumstances common to most prisoners, such as lack of legal education and 3 limited law library access, do not establish exceptional circumstances that warrant a request for 4 voluntary assistance of counsel”). 5 Moreover, the fact an attorney would be better prepared to litigate and try this action, does 6 not amount to an exceptional circumstance warranting the appointment of counsel. See Rand, 113 7 F.3d at 1525 (finding no abuse of discretion under 28 U.S.C. § 1915(e) when district court denied 8 appointment of counsel despite fact that pro se prisoner “may well have fared better-particularly 9 in the realm of discovery and the securing of expert testimony”). There is little doubt most pro se 10 litigants “find it difficult to articulate [their] claims,” and would be better served with the 11 assistance of counsel. Wilborn, 789 F.2d at 1331. For this reason, in the absence of counsel, 12 federal courts employ procedures which are highly protective of a pro se litigant's rights. See 13 Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding pro se complaint to less stringent standard) 14 (per curiam). In fact, where a plaintiff appears pro se in a civil rights case, the court must construe 15 the pleadings liberally and afford the plaintiff any benefit of the doubt. Karim–Panahi v. Los 16 Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). The rule of liberal construction is 17 “particularly important in civil rights cases.” 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 EDWARD HARRY CONSTABLE, Case No.: 1:25-cv-00591-SKO 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION TO APPOINT COUNSEL 13 v. (Doc. 10) 14 KATHLEEN ALLISON, et al.,
15 Defendants. 16 17 Plaintiff Edward Harry Constable is appearing pro se and in forma pauperis in this civil 18 rights action pursuant to 42 U.S.C. section 1983. 19 I. INTRODUCTION 20 Plaintiff filed his original complaint on May 20, 2025. (Doc. 1.) The Court issued its First 21 Informational Order in Prisoner/Civil Detainee Civil Rights Case on May 22, 2025. (Doc. 3.) 22 On June 13, 2025, Plaintiff filed a first amended complaint (Doc. 8) and on August 1, 23 2025, the Clerk of the Court lodged a second amended complaint (Doc. 9). 24 On August 4, 2025, Plaintiff filed a document directed to Keith Holland, Clerk of the 25 Court, that was docketed as a motion to appoint counsel and notice. (Doc. 10.) 26 // 27 // // 1 II. DISCUSSION 2 Legal Standards Concerning the Appointment of Counsel 3 Plaintiffs do not have a constitutional right to appointed counsel in section 1983 actions. 4 Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on other grounds, 154 F.3d 5 952, 954 n.1 (9th Cir. 1998). Nor can the Court require an attorney to represent a party under 28 6 U.S.C. § 1915(e)(1). See Mallard v. U.S. Dist. Court, 490 U.S. 296, 304-05 (1989). However, in 7 “exceptional circumstances,” the Court may request the voluntary assistance of counsel pursuant 8 to section 1915(e)(1). Rand, 113 F.3d at 1525. 9 Given that the Court has no reasonable method of securing and compensating counsel, the 10 Court will seek volunteer counsel only in extraordinary cases. In determining whether 11 “exceptional circumstances exist, a district court must evaluate both the likelihood of success on 12 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 13 complexity of the legal issues involved.” Rand, 113 F.3d at 1525 (internal quotation marks & 14 citations omitted). 15 Analysis 16 First, the Court must evaluate the likelihood of Plaintiff’s success on the merits of his 17 claims. Rand, 113 F.3d at 1525. Here, Plaintiff’s complaint has not yet been screened. Moreover, 18 at screening the Court determines whether a plaintiff has sufficiently and plausibly alleged a 19 cause of action or claim entitling the plaintiff to relief. The merits of the allegations are not tested 20 at screening because the Court is required to consider factual allegations to be true for purposes of 21 screening. At this stage of the proceedings, a likelihood of success on the merits cannot be 22 determined. See, e.g., Porter v. Rivas, No. 1:23-cv-00105- ADA-CDB (PC), 2023 WL 4765492, 23 at *1 (E.D. Cal. July 26, 2023) (“A likelihood of success on the merits determination is not the 24 same as that required at screening; at screening, the Court is tasked with determining whether a 25 plaintiff has sufficiently and plausibly alleged a cause of action or claim entitling the plaintiff to 26 relief. The merits of the allegations are not tested, for the Court is to consider factual allegations 27 to be true for purposes of screening”). 1 Next, the Court must also evaluate Plaintiff’s ability to articulate his claims pro se 2 considering the complexity of the legal issues involved. Rand, 113 F.3d at 1525. A brief review 3 of Plaintiff’s original and first amended complaints reveals he asserts Eighth Amendment 4 excessive force claims against the name defendants. (See Doc. 1 at 5 & Doc. 8 at 3.) Such claims 5 are not complex. See Maldanado v. Merritt, No. 1:23-cv-00482-JLT-SKO PC, 2023 WL 6 6751114, at *3 (E.D. Cal. Oct. 12, 2023) (“Eighth Amendment deliberate indifference to serious 7 medical needs claims are not complex”); Andre-Gollihar v. County of San Joaquin, No. 2:09-cv- 8 03313 MCE KJN PS, 2010 WL 2925358, at *2 (E.D. Cal. July 26, 2010) (“plaintiff's claims of 9 excessive force and wrongful death are not complex”); Crawford v. Hughes, No. 13-CV-6638- 10 FPG, 2017 WL 130273, at *3 (W.D.N.Y. Jan. 13, 2017) (“the issues in this case—namely, the 11 alleged use of excessive force, discrimination, and denial of due process at a disciplinary 12 hearing—are not complex”); Arroy v. Jeffries, No. 23-1129, 2023 WL 3010154, at *4 (C.D. Ill. 13 Apr. 19, 2023) (denying motion for appointment of counsel and finding “Plaintiff’s failure to 14 protect claim is not complex”). 15 Plaintiff is advised that incarceration is not an exceptional circumstance warranting the 16 appointment of counsel. See Suarez v. Clark, No. 1:22-cv-00160-JLT-SAB (PC), 2024 WL 17 477982, at *1 (E.D. Cal. Jan. 25, 2024) (“the Court has ‘repeatedly’ held incarceration's 18 challenges on litigation do not constitute an exceptional circumstance. [] If Plaintiff's 19 incarceration was an exceptional circumstance, any prisoner would be entitled to counsel”). Nor 20 are a lack of legal knowledge and limited law library access exceptional circumstances; rather, 21 they are circumstances common to nearly all pro se prisoner litigants. See, e.g., Escamilla v. 22 Oboyle, No. 2:22-cv-2038 KJM AC P, 2023 WL 2918028, at *1 (E.D. Cal. Apr. 12, 2023) 23 (“Circumstances common to most prisoners, such as a lack of legal education and limited law 24 library access, do not establish exceptional circumstances that would warrant a request for 25 voluntary assistance of counsel”); Faultry v. Saechao, No. 2:18-cv-1850 KJM AC P, 2020 WL 26 2561596, at *2 (E.D. Cal., May 20, 2020) (same); Callender v. Ramm, No. 2:16-cv-0694 JAM 27 AC P, 2018 WL 6448536, at *3 (E.D. Cal. Dec. 10, 2018) (“The law is clear: neither plaintiff's 1 counsel”); Galvan v. Fox, No. 2:15-CV-01798-KJM (DB), 2017 WL 1353754, at *8 (E.D. Cal. 2 Apr. 12, 2017) (“Circumstances common to most prisoners, such as lack of legal education and 3 limited law library access, do not establish exceptional circumstances that warrant a request for 4 voluntary assistance of counsel”). 5 Moreover, the fact an attorney would be better prepared to litigate and try this action, does 6 not amount to an exceptional circumstance warranting the appointment of counsel. See Rand, 113 7 F.3d at 1525 (finding no abuse of discretion under 28 U.S.C. § 1915(e) when district court denied 8 appointment of counsel despite fact that pro se prisoner “may well have fared better-particularly 9 in the realm of discovery and the securing of expert testimony”). There is little doubt most pro se 10 litigants “find it difficult to articulate [their] claims,” and would be better served with the 11 assistance of counsel. Wilborn, 789 F.2d at 1331. For this reason, in the absence of counsel, 12 federal courts employ procedures which are highly protective of a pro se litigant's rights. See 13 Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding pro se complaint to less stringent standard) 14 (per curiam). In fact, where a plaintiff appears pro se in a civil rights case, the court must construe 15 the pleadings liberally and afford the plaintiff any benefit of the doubt. Karim–Panahi v. Los 16 Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). The rule of liberal construction is 17 “particularly important in civil rights cases.” Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 18 1992). Thus, where a pro se litigant can “articulate his claims” in light of the relative complexity 19 of the matter, the “exceptional circumstances” which might require the appointment of counsel do 20 not exist. Wilborn, 789 F.2d at 1331; accord Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). 21 In sum, the test is not whether Plaintiff would benefit from the appointment of counsel; 22 the test is whether exceptional circumstances exist. Here, no exceptional circumstances exist 23 warranting the appointment of counsel. Thus, Plaintiff’s motion will be denied. 24 Other Matters 25 The Court encourages Plaintiff to review the First Informational Order issued on May 22, 26 2025. (See Doc. 3.) That Order provides that “[l]etters to the Court or a judge may be 27 stricken/returned.” (Id. at 2.) Plaintiff should refrain from directing correspondence to the Clerk 1 that are premature and outside the scope of the Clerk’s purview. (See, e.g., Doc. 10 at 1 [“I wish 2 to appear in court in person to pick a jury”]) & 1-3 [arguing the merits of the claims].) 3 The First Informational Order also advises Plaintiff that the Court is required to screen 4 complaints pursuant to 28 U.S.C. section 1915A(a). (Doc. 3 at 3.) As noted, this Court “has an 5 extremely large number of pro se plaintiff civil rights cases pending before it, and delay is 6 inevitable.” (Id.) Plaintiff’s first amended complaint will be screened in due course. 7 To the extent Plaintiff intended for document lodged with the Court on August 1, 2025 8 (Doc. 9) to be a second amended complaint, Plaintiff is advised that an amended complaint 9 supersedes the original complaint. Lacey v. Maricopa Cnty., 693 F.3d 896, 927 (9th Cir. 2012). 10 Therefore, an amended complaint must be “complete in itself without reference to the prior or 11 superseded pleading.” Local Rule 220. A review of the August 1, 2025, submission reveals it to 12 be more in the nature of a letter, rather than a complaint. For example, it does not include a 13 caption and fails to identify the defendants named in the action. In sum, the submission is not an 14 amended complaint “complete in itself.” Lacey, 693 F.3d at 927. 15 If Plaintiff elects to file a second amended complaint that is “complete in itself without 16 reference to the prior” complaint, he should use the Court’s civil rights complaint form to ensure 17 compliance with the Federal Rules of Civil Procedure. To be clear, screening of any submitted 18 complaint is required before the action proceeds to service of process and litigation commences. 19 III. CONCLUSION AND ORDER 20 Accordingly, this Court HEREBY ORDERS that: 21 1. Plaintiff’s motion for the appointment of counsel (Doc. 10) is DENIED; 22 2. Plaintiff’s operative complaint will be screened in due course; and 23 3. The Clerk of the Court is directed to send Plaintiff an amended civil rights complaint 24 form as a one-time courtesy. 25 IT IS SO ORDERED. 26
27 Dated: August 8, 2025 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE