Benyamini v. Manjuano et al

Filing 148

ORDER DENYING 144 Motion for Appointment of Counsel and 147 Motion for Private Investigator, signed by Magistrate Judge Gary S. Austin on 12/1/2011. (Jessen, A)

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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 P. BENYAMINI,

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1:06-cv-1096 AWI GSA (PC)

Plaintiff,
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL AND
PRIVATE INVESTIGATOR

vs.
DEBBI MANJUANO, et al.,

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Defendants.

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________________________________/

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(Docs. 144, 147.)

On November 2, 2011, and November 23, 2011, plaintiff filed motions seeking the
appointment of counsel and a private investigator.
With regard to court-appointed counsel, plaintiff does not have a constitutional right to

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appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the

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court cannot require an attorney to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1).

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Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296, 298, 109

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S.Ct. 1814, 1816 (1989). However, in certain exceptional circumstances the court may request

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the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525.

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Without a reasonable method of securing and compensating counsel, the court will seek

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volunteer counsel only in the most serious and exceptional cases. In determining whether

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“exceptional circumstances exist, the district court must evaluate both the likelihood of success

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of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the
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complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). In

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the present case, the court does not find the required exceptional circumstances. Even if it is

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assumed that plaintiff is not well versed in the law and that he has made serious allegations

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which, if proved, would entitle him to relief, his case is not exceptional. This court is faced with

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similar cases almost daily. Further, at this stage in the proceedings, the court cannot make a

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determination that plaintiff is likely to succeed on the merits, and based on a review of the record

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in this case, the court does not find that plaintiff cannot adequately articulate his claims. Id.

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With regard to plaintiff’s motion for a court-appointed private investigator, the

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expenditure of public funds on behalf of an indigent litigant is proper only when authorized by

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Congress. See Tedder v. Odel, 890 F.2d 210 (9th Cir. 1989) (citations omitted). The in forma

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pauperis statute does not authorize the expenditure of public funds for the purpose sought by

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plaintiff in the instant motion.

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For the foregoing reasons, plaintiff’s motions for the appointment of counsel and
a private investigator are HEREBY DENIED, without prejudice.
IT IS SO ORDERED.
Dated:
220hhe

December 1, 2011

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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