(PC) Penn v. Warden of Kern Valley State Prison

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARLIN PENN, Case No. 1:18-cv-01482-AWI-HBK 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION TO APPOINT COUNSEL 13 v. (Doc. No. 21) 14 WARDEN OF KERN VALLEY STATE PRISON, et al., 15 Defendants. 16

17 18 Pending before the court is plaintiff’s motion for leave to appoint counsel filed April 5, 19 2021. (Doc. No. 21). Plaintiff, who is a prisoner, initiated this action by filing a pro se civil 20 rights complaint filed under 42 U.S.C. § 1983. (Doc. No. 1). Plaintiff is proceeding on his 21 second amended complaint filed May 18, 2020. (Doc. No. 19). The court granted plaintiff’s 22 motion for leave to proceed in forma pauperis due to his indigency. (Doc. No. 7). The court has 23 not yet completed a screening of plaintiff’s second amended complaint. See 28 U.S.C. § 1915A. 24 Plaintiff requests the appointment of counsel for the following reasons: (1) he claims to have 25 mental health issues and suffers from anxiety and depression; (2) prison officials are retaliating 26 against him for filing the instant complaint; and, (3) his case involves extensive discovery, 27 including depositions of prison officials and inmate witnesses. (See generally Doc. No. 21). 28 1 The court previously denied plaintiff appointment of counsel on two occasions. (See Doc. 2 Nos. 11, 17). The United States Constitution does not require appointment of counsel in civil 3 cases. See Lewis v. Casey, 518 U.S. 343, 354 (1996) (explaining Bounds v. Smith, 430 U.S. at 4 817, did not create a right to appointment of counsel in civil cases). Under 28 U.S.C. § 1915, this 5 court has discretionary authority to appoint counsel for an indigent party to commence, prosecute, 6 or defend a civil action. See 28 U.S.C. § 1915(e)(1) (stating the court has authority to appoint 7 counsel for people unable to afford counsel); see also United States v. McQuade, 519 F.2d 1180 8 (9th Cir. 1978) (addressing relevant standard of review for motions to appoint counsel in civil 9 cases) (other citations omitted). However, motions to appoint counsel in civil cases are granted 10 only in “exceptional circumstances.” Id. at 1181. The court may consider many factors to 11 determine if exceptional circumstances warrant appointment of counsel including, but not limited 12 to, proof of indigence, the likelihood of success on the merits, and the ability of the plaintiff to 13 articulate his or her claims pro se in light of the complexity of the legal issues involved. Id.; see 14 also Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds 15 on reh’g en banc, 154 F.2d 952 (9th Cir. 1998). 16 Plaintiff’s third motion seeking appointment of counsel has not met his “burden of 17 demonstrating exceptional circumstances.” Jones v. Chen, 2014 WL 12684497, at *1 (E.D. Cal. 18 Jan. 14, 2014). Plaintiff does not indicate how his anxiety and depression affects his ability to 19 prosecute this action. Indeed, a review of the pleadings filed by plaintiff to date show he can 20 articulate his claims in this case. See Brown v. Reif, 2019 WL 989874, at *2 (E.D. Cal. Mar. 1, 21 2019) (denying appointment of counsel where the plaintiff’s filing demonstrate ability to properly 22 litigate case despite mental illness). 23 Although plaintiff is proceeding pro se and is incarcerated, he faces the same obstacles all 24 pro se prisoners face. Challenges conducting discovery and preparing for trial “are ordinary for 25 prisoners pursuing civil rights claim” and cannot form the basis for appointment of counsel. 26 Courtney v. Kandel, 2020 WL 1432991, at *1 (E.D. Cal. Mar. 24, 2020). The claims plaintiff 27 alleges are not “so complex that due process violations will occur absent the presence of 28 counsel.” Bonin v. Vasquez, 999 F.2d 425, 428–29 (9th Cir. 1993). While the assistance of 1 counsel during trial may be helpful, the “relevant consideration is not one of convenience” but 2 | rather exceptionalness. Howard, 2010 WL 1641087, at *2. 3 While plaintiff believes his second amended complaint raises a meritorious claim, the 4 | court has not yet screened plaintiff's second amended complaint; and, thus the court cannot assess 5 | whether plaintiff will succeed on the merits. There is therefore no basis for the court taking the 6 | extraordinary step of appointing counsel. Should this case progress and plaintiffs situation 7 | change such that he can demonstrate exceptional circumstances, he may renew his motion for 8 | appointment of counsel at that time. 9 Accordingly, it is ORDERED: 10 Plaintiff's motion to appoint counsel (Doc. No. 21) is DENIED without prejudice. 11 IT IS SO ORDERED. Dated: May 12, 2021 Khao Th. foareh Zaskth 14 HELENA M. BARCH-KUCHTA 15 UNITED STATES MAGISTRATE JUDGE

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