(PC) Mackey v. Goss

• Court: District Court, E.D. California
• Decided: May 19, 2021
• Docket: 1:18-cv-00988
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TOMMY MACKEY, Case No. 1:18-cv-00988-DAD-HBK 12 Plaintiff, 13 v. ORDER DENYING PLAINTIFFS MOTION TO APPOINT COUNSEL 14 FNU RODRIQUEZ, et. al., (Doc. No. 48) 15 Defendant. 16

17 18 Pending before the Court is plaintiff’s motion to appoint counsel filed April 30, 2021. (Doc. 19 No. 48.) Plaintiff Tommy Mackey is currently incarcerated within a California state prison and is 20 proceeding pro se on his civil rights complaint as screened. (See Doc. Nos. 1, 15, 16, 17, 30). 21 Plaintiff is proceeding in forma pauperis. (Doc. No.7). 22 The United States Constitution does not require appointment of counsel in civil cases. See 23 Lewis v. Casey, 518 U.S. 343, 354 (1996) (explaining Bounds v. Smith, 430 U.S. at 817, did not 24 create a right to appointment of counsel in civil cases). Under 28 U.S.C. § 1915, this court has 25 discretionary authority to appoint counsel for an indigent to commence, prosecute, or defend a 26 civil action. See 28 U.S.C. § 1915(e)(1) (stating the court has authority to appoint counsel for 27 people unable to afford counsel); see also United States v. McQuade, 519 F.2d 1180 (9th Cir. 28 1 1978) (addressing relevant standard of review for motions to appoint counsel in civil cases) (other 2 citations omitted). However, motions to appoint counsel in civil cases are granted only in 3 “exceptional circumstances.” Id. at 1181. The court may consider many factors to determine if 4 exceptional circumstances warrant appointment of counsel including, but not limited to, proof of 5 indigence, the likelihood of success on the merits, and the ability of the plaintiff to articulate his 6 or her claims pro se in light of the complexity of the legal issues involved. Id.; see also Rand v. 7 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds on reh’g en 8 banc, 154 F.2d 952 (9th Cir. 1998). 9 Plaintiff states that he requires appointment of counsel for the following reasons: 10 plaintiff’s indigence, the alleged factual and legal complexity of his case; his inability to 11 investigate due to incarcerated status; conflicting testimony; the merits of his case; and his 12 inability to afford the hiring of his own attorney. (Doc. No. 48 at 1, 3-4.). Plaintiff has not met 13 his “burden of demonstrating exceptional circumstances.” Jones v. Chen, 2014 WL 12684497, at 14 *1 (E.D. Cal. Jan. 14, 2014). 15 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 is incarcerated, he faces the same obstacles all pro se prisoners face. Challenges 19 conducting discovery and preparing for trial “are ordinary for prisoners pursuing civil rights 20 claim” and cannot form the basis for appointment of counsel. Courtney v. Kandel, 2020 WL 21 1432991, at *1 (E.D. Cal. Mar. 24, 2020). Contrary to plaintiff’s assertion, the court does not 22 find the issues are “so complex that due process violations will occur absent the presence of 23 counsel.” Bonin v. Vasquez, 999 F.2d 425, 428–29 (9th Cir. 1993). From the pleadings filed in 24 this case, plaintiff has demonstrated an ability to prosecute this case pro se. 25 Accordingly, it is ORDERED: 26 Plaintiff’s motion to appoint counsel (Doc. No. 48) is DENIED without prejudice. 27 /// 28 1 | ITIS SOORDERED. 2 3 | Dated: _ May 19, 2021 oo. WN. fered Yack HELENA M. BARCH-KUCHTA 4 UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 i 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28