Hackworth v. Rangel et al

Filing 97

ORDER Denying Motion For Appointment Of Counsel (ECF No. 96 ), signed by Magistrate Judge Michael J. Seng on 12/6/2012. (Fahrney, E)

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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ROBERT HACKWORTH,

CASE No.

1:06-cv-0850-AWI-MJS (PC)

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Plaintiff,
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ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

v.
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(ECF No. 96)
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P. RANGEL, et al.,

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Defendants.
________________________________/
Plaintiff Robert Hackworth is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action filed July 6, 2006 pursuant to 42 U.S.C. § 1983.

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(Compl., ECF No. 1.) Plaintiff declined to extend Magistrate Judge jurisdiction to all

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matters and for all purposes in this case. (Decline Magistrate, ECF No. 94.) Defendant

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Rangel consented to extend Magistrate Judge jurisdiction to all matters and for all

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purposes in this case. (Consent Magistrate, ECF No. 95.)

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The Court granted Defendant Rangel’s motion for summary judgment on

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October 6, 2011 and dismissed this action. (ECF Nos. 77 & 78.) Plaintiff initiated an

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appeal on October 17, 2011. (ECF No. 79.) The United States Court of Appeals for the

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Ninth Circuit vacated the Court’s summary judgment and remanded the matter for

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further proceedings on September 12, 2012.1 (Mem. Remand, ECF No. 90.) Trial in this

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Mandate thereon entered by the United States Court of Appeals for the Ninth Circuit on October

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matter is set for October 22, 2013. (Second Sched. Order, ECF No. 92.) Pending

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before the Court is Plaintiff’s motion for appointment of counsel filed December 5, 2012.

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(Mot. Appt. Counsel, ECF No. 96.)

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Plaintiff does not have a constitutional right to appointed counsel in this action,

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Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), partially overruled on other

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grounds, 154 F.3d 952, 954 n.1 (9th Cir. 1998), and the Court can not require an

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attorney to represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United

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States District Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989).

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However, in certain exceptional circumstances the Court may request the voluntary

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assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525.
Without a reasonable method of securing and compensating counsel, the Court

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will seek volunteer counsel only in the most serious and exceptional cases. In

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determining whether “exceptional circumstances exist, the district court must evaluate

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both the likelihood of success of the merits [and] the ability of the [plaintiff] to articulate

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his or her claims pro se in light of the complexity of the legal issues involved.” Id.

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Neither of these factors is dispositive and both must be viewed together before

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reaching a decision on request of counsel under section 1915(d).” Wilborn v.

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Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); Palmer v. Valdez, 560 F.3d 965, 970

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(9th Cir. 2009).

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The burden of demonstrating exceptional circumstances is on the Plaintiff. See

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Palmer, 560 F.3d at 970 (plaintiff “has not made the requisite showing of exceptional

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circumstances for the appointment of counsel”); accord, Alvarez v. Jacquez, 415 F.

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App’x 830, 831 (9th Cir. 2011) (plaintiff “failed to show exceptional circumstances”);

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Simmons v. Hambly, 14 F. App’x 918, 919 (9th Cir. 2001) (same); Davis v. Yarborough,

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459 F. App’x 601, 602 (9th Cir. 2011) (plaintiff “did not show the ‘exceptional

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circumstances’ required to appoint counsel under 28 U.S.C. § 1915(e)(1).”)

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18, 2012. (Mandate, ECF No. 91.)

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In the present case, the Court does not find the required exceptional

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circumstances. Even if it is assumed that Plaintiff is not well versed in the law and that

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he has made serious allegations which, if proved, would entitle him to relief, his case is

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not exceptional. This Court is faced with similar cases almost daily. Further, Plaintiff’s

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claim remains in disputes and the Court can not make a determination at this stage of

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the litigation that Plaintiff is likely to succeed on the merits. The excessive force claim in

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issue does not appear to be novel or unduly complex. The facts alleged to date appear

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straightforward and unlikely to involve any extensive further investigation and discovery.

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The papers filed by Plaintiff in this case reflect an appreciation of the legal issues

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and standards and an ability to express same adequately in writing.
Finally, nothing suggests that Plaintiff has made diligent effort to secure

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counsel.2 Plaintiff’s lack of funds alone does not necessarily mean efforts to secure

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counsel would be futile.
For the foregoing reasons, Plaintiff’s motion for appointment of counsel (ECF No.

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96) is HEREBY DENIED, without prejudice.

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IT IS SO ORDERED.

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Dated:
12eob4

December 6, 2012

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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See e.g. Thornton v. Schwarzenegger, 2011 W L 90320, *3-4 (S.D. Cal. 2011) (cases cited).

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