(PC) Ponce v. Solorio

• Court: District Court, E.D. California
• Decided: September 27, 2022
• Docket: 1:22-cv-01012
• Status: Unknown

Opinion

7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9

10 TERRY GABRIEL PONCE, JR., Case No. 1:22-cv-01012-SAB (PC)

11 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL, 12 v. WITHOUT PREJUDICE

13 M. SOLORIO, et al., (ECF No. 12) 14 Defendants.

15 16 Plaintiff Terry Gabriel Ponce, Jr., is proceeding pro se and in forma pauperis in this civil 17 rights action filed pursuant to 42 U.S.C. § 1983. 18 Currently before the Court is Plaintiff’s motion for appointment of counsel, filed 19 September 23, 2022. 20 There is no constitutional right to appointed counsel in this action, Rand v. Rowland, 113 21 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require any attorney to represent plaintiff 22 pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern 23 District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the 24 Court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 25 F.3d at 1525. 26 Without a reasonable method of securing and compensating counsel, the Court will seek 27 volunteer counsel only in the most serious and exceptional cases. In determining whether “exceptional circumstances exist, the district court must evaluate both the likelihood of success 1 | on the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 2 | complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 3 In the present case, the Court does not find the required exceptional circumstances. Even 4 | if it assumed that Plaintiff is not well versed in the law and that he has made serious allegations 5 | which, if proved, would entitle him to relief, his case is not exceptional. The Court is faced with 6 | similar cases almost daily. While the Court recognizes that Plaintiff is at a disadvantage due to 7 | his pro se status and his incarceration, the test is not whether Plaintiff would benefit from the 8 | appointment of counsel. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (“Most 9 | actions require development of further facts during litigation and a pro se litigant will seldom be 10 | in a position to investigate easily the facts necessary to support the case.”) The test is whether 11 | exception circumstances exist and here, they do not. At this early stage of the litigation, the 12 | Court cannot find Plaintiff is likely to succeed on the merits, as he has not stated a cognizable 13 | claim for relief. In addition, circumstances common to most prisoners, such as lack of legal 14 | education and limited law library access, do not establish exceptional circumstances that would 15 | warrant a request for voluntary assistance of counsel. Accordingly, Plaintiff's motion for the 16 | appointment of counsel is denied, without prejudice. 17 18 IT IS SO ORDERED. DAM Le 19 | Dated: _September 27, 2022 _ ef UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28