Rodrick Lipsey v. PhaHONG, et al.

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RODRICK LIPSEY, No. 2:25-cv-0809 SCR P 12 Plaintiff, 13 v. ORDER 14 PhaHONG, et al., 15 Defendants. 16 17 Plaintiff is incarcerated in state prison and proceeding pro se and in forma pauperis with a 18 civil rights action under 42 U.S.C. § 1983. On April 6, 2026, Defendants Plahang1 and Daniels 19 filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF No. 16. 20 Plaintiff failed to file a timely opposition or otherwise respond to the motion. See Local Rule 21 230(l) (21 days to file an opposition or statement of non-opposition). 22 Plaintiff’s motion for appointment of counsel is also pending before the Court. ECF No. 23 12. Because Plaintiff may mistakenly be waiting for a ruling on his motion to appoint counsel 24 before responding to Defendants’ motion to dismiss, the undersigned will sua sponte grant him 25 another opportunity to oppose. In addition, for the reasons explained below, Plaintiff’s motion to 26 appoint counsel is denied without prejudice to refiling at a later point in the proceedings. 27 1 By this order the undersigned will direct the Clerk of Court to correct the spelling of Defendant 28 Plahang’s name on the Docket. 1 MOTION TO APPOINT COUNSEL 2 I. Legal Standard 3 District courts lack authority under 28 U.S.C. § 1915 to require counsel to represent 4 indigent prisoners in section 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 5 (1989). In exceptional circumstances, the court may request that an attorney voluntarily represent 6 such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 7 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). The test for exceptional 8 circumstances requires the court to evaluate the plaintiff’s likelihood of success on the merits and 9 the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal 10 issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); Weygandt v. 11 Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances common to most prisoners, such as lack 12 of legal education and limited law library access, do not establish exceptional circumstances that 13 would warrant a request for voluntary assistance of counsel. Wood, 900 F.2d at 1335; Riley v. 14 Franke, 340 F. Supp. 3d 783, 787 (E.D. Wis. 2018). 15 Beyond § 1915(e)(1), other sources of law may implicate a request for counsel. For 16 example, appointed counsel may be required in a civil proceeding as an accommodation for a 17 litigant who is disabled. See Franco-Gonzalez v. Holder, No. 10-cv-02211 DMG (DTBx), 2013 18 WL 3674492, at *3-*9 (C.D. Cal. Apr. 23, 2013) (granting summary judgment to class of 19 mentally disabled individuals in civil immigration proceedings on their request for appointed 20 representatives under the Rehabilitation Act). Due process may also require appointment of 21 counsel in certain proceedings. See Turner v. Rogers, 564 U.S. 431, 444-45 (2011) (analyzing 22 request for appointment of counsel in civil proceeding under the Mathews v. Eldridge, 424 U.S. 23 319 (1976), procedural due process framework). 24 II. Analysis 25 In the motion, Plaintiff cites his indigency, lack of legal knowledge, and incarceration as 26 bases for the appointment of counsel. ECF No. 12 at 2. However, these are all circumstances 27 common to most prisoners and do not constitute exceptional circumstances. Moreover, given the 28 early stage of this case, the undersigned is unable to assess Plaintiff’s likelihood of success on the 1 | merits and finds Plaintiffs alleged need for assistance with discovery and presenting evidence to 2 || be premature concerns. For these reasons, Plaintiff's motion is denied. The denial is without 3 || prejudice, which means that Plaintiff may refile at a later stage of the proceeding should 4 || exceptional circumstances or other bases warranting the appointment of counsel arise. 5 CONCLUSION 6 Accordingly, IT IS HEREBY ORDERED that: 7 1. Plaintiff shall file an opposition to Defendants motion to dismiss within 21 days of 8 | this order. Plaintiff is advised that a failure to file a response may be deemed a waiver of any 9 || opposition to the granting of the motion. Local Rule 230(/). 10 2. Plaintiff's motion for appointment of counsel (ECF No. 12) is DENIED without 11 | prejudice to refiling at a later point of the proceeding. 12 3. The Clerk of the Court is directed to update the Docket to reflect the correct 13 | spelling of Defendant Plahang’s name. 14 | DATED: May 20, 2026

16 17 SEAN C. RIORDAN UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28