(PC) Lane v. Beach

Opinion

7 UNITED STATES DISTRICT COURT

8 EASTERN DISTRICT OF CALIFORNIA

10 EVERETTE LANE, 1:20-cv-00147-JLT-GSA-PC

11 Plaintiff, ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL 12 vs. (ECF No. 53.) 13 DR. BEACH, 14 Defendant. 15 16 I. BACKGROUND 17 Everette Lane (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 18 with this civil rights action pursuant to 42 U.S.C. § 1983. This case, filed by Plaintiff against 19 defendant Beach for inadequate medical treatment, is scheduled for trial on August 29, 2023 at 20 8:30 a.m. before the Honorable Jennifer L. Thurston. 21 On July 31, 2023, Plaintiff filed a motion for appointment of counsel. (ECF No. 53.) 22 II. MOTION FOR APPOINTMENT OF COUNSEL 23 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 24 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to 25 represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court 26 for the Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in 27 certain exceptional circumstances the court may request the voluntary assistance of counsel 28 pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. 1 Without a reasonable method of securing and compensating counsel, the court will seek 2 volunteer counsel only in the most serious and exceptional cases. In determining whether 3 “exceptional circumstances exist, the district court must evaluate both the likelihood of success 4 of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 5 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 6 In the present case, Plaintiff seeks court-appointed counsel, arguing that he is unable to 7 afford counsel, the issues in his case are complex, and he has set forth a colorable claim for relief. 8 These conditions do not make Plaintiff’s case exceptional under the law. At this stage of the 9 proceedings, the court cannot find that Plaintiff is likely to succeed on the merits, and the legal 10 issue in this case -- whether defendant Beach was deliberately indifferent to Plaintiff’s serious 11 medical needs -- is not complex. Moreover, based on a review of the record in this case, the 12 court finds that Plaintiff can adequately articulate his claims. Thus, the court does not find the 13 required exceptional circumstances, and Plaintiff’s motion for appointment of counsel shall be 14 denied without prejudice. 15 III. CONCLUSION 16 Accordingly, IT IS HEREBY ORDERED that Plaintiff’s motion for appointment of 17 counsel, filed on July 31, 2023, is denied without prejudice. 18 IT IS SO ORDERED. 19

20 Dated: August 1, 2023 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 21

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