(PC) Geray v. Cates

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JASON GERAY, Case No. 1:21-cv-00593-AWI-HBK 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION TO APPOINT COUNSEL 13 v. (Doc. No. 14) 14 BRIAN CATES, K. NOUWEIS, 15 Defendants. 16 17 18 Plaintiff Jason Geray is a current state pre-trial detainee proceeding pro se and in forma 19 pauperis on his complaint filed under 42 U.S.C. § 1983. (Doc. Nos. 1, 10). Pending before the 20 Court is Plaintiff’s motion to appoint counsel. (Doc. No. 14). 21 Plaintiff seeks appointment of counsel for a number of reasons, including, but not limited 22 to: (1) he does not have access to a “physical law library” and does not have the court rules (2) he 23 does not have access to office supplies and equipment such as a “writing pen,” a copying 24 machine, and numbered paper; (3) and he cannot prepare his case because he does not have 25 access to a magazine that was allegedly confiscated and is the subject of his complaint. 26 The United States Constitution does not require appointment of counsel in civil cases. See 27 Lewis v. Casey, 518 U.S. 343, 354 (1996) (explaining Bounds v. Smith, 430 U.S. at 817, did not 28 create a right to appointment of counsel in civil cases). This Court has discretionary authority 1 under 28 U.S.C. § 1915 to appoint counsel for an indigent to commence, prosecute, or defend a 2 civil action. See 28 U.S.C. § 1915(e)(1) (stating the court has authority to appoint counsel for 3 people unable to afford counsel); see also United States v. McQuade, 519 F.2d 1180 (9th Cir. 4 1978) (addressing relevant standard of review for motions to appoint counsel in civil cases) (other 5 citations omitted). However, motions to appoint counsel in civil cases are granted only in 6 “exceptional circumstances.” Id. at 1181. The Court may consider many factors to determine if 7 exceptional circumstances warrant appointment of counsel including, but not limited to, proof of 8 indigence, the likelihood of success on the merits, and the ability of the plaintiff to articulate his 9 or her claims pro se in light of the complexity of the legal issues involved. Id.; see also Rand v. 10 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds on reh’g en 11 banc, 154 F.2d 952 (9th Cir. 1998). The Court “is not required to articulate reasons for denying 12 appointment of counsel if the reasons are clear from the record.” Johnson v. United States Dept. 13 of Treasury, 939 F.2d 820, 824 (9th Cir.1991). 14 Plaintiff has failed to demonstrate that exceptional circumstances warrant appointment of 15 counsel. Plaintiff’s indigence does not qualify “as an exceptional circumstance in a prisoner civil 16 rights case.” Montano v. Solomon, 2010 WL 2403389, at *2 (E.D. Cal. June 11, 2010); Callender 17 v. Ramm, 2018 WL 6448536, at *3 (E.D. Cal. Dec. 10, 2018). Although Plaintiff is proceeding 18 pro se and in prison, he faces the same obstacles all pro se prisoners face. Challenges prosecuting 19 a case, such as law library access, “are ordinary for prisoners pursuing civil rights claim” and 20 cannot form the basis for appointment of counsel. Courtney v. Kandel, 2020 WL 1432991, at *1 21 (E.D. Cal. Mar. 24, 2020). If Plaintiff’s imprisonment was an exceptional circumstance, then 22 nearly every prisoner would be entitled to counsel. Instead, “[p]risoners have a right to 23 meaningful access to the courts, but there is no absolute right to use a prison law library.” 24 Springfield v. Khalit, 2018 WL 5980155, at *3 (E.D. Cal. Nov. 14, 2018) (citing Lewis v. Casey, 25 518 U.S. 343, 346 (1996)). And while Plaintiff complains that he does not have access to a pen, 26 he was ale to write the instant motion and his civil rights complaint with a writing instrument. 27 Further, his concerns that he does not possess line paper are also without merit. Plaintiff does not 28 need preprinted lined paper. Instead, he may simply created lined paper by placing the 1 | appropriate numbers sequentially down the left-side of a blank piece of paper. Finally, this case 2 | 1s in the early stages of the proceedings and remains subject to screening. Should this case 3 | progress and Plaintiff's circumstances change so that he is able to demonstrate exceptional 4 | circumstances, he may renew his motion for appointment of counsel at that time. 5 Accordingly, it is ORDERED: 6 Plaintiff's motion to appoint counsel (Doc. No. 14) is DENIED without prejudice. 7 Dated: _ April 6, 2022 lew □□ fareh Zacks 9 HELENA M. BARCH-KUCHTA 0 UNITED STATES MAGISTRATE JUDGE

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