Henderson v. Rodriguez

Filing 84

ORDER DENYING 82 Motion to Appoint Counsel and ORDER SETTING Status Conference, signed by Magistrate Judge Dennis L. Beck on 6/20/2011. Status Conference set for 7/6/2011 at 11:00 AM in Courtroom 9 (DLB) before Magistrate Judge Dennis L. Beck. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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CURTIS LEE HENDERSON, SR.,

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CASE NO. 1:08-CV-00188-LJO-DLB PC

Plaintiff,

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v.

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ORDER DENYING MOTION TO APPOINT
COUNSEL (DOC. 82)

G. RODRIGUEZ,

ORDER SETTING STATUS CONFERENCE
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July 6, 2011 at 11:00 a.m. in Courtroom 9
(DLB)

Defendant.

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/

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Plaintiff Curtis Lee Henderson, Sr. (“Plaintiff”) is a prisoner in the custody of the

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California Department of Corrections and Rehabilitation. Plaintiff is proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding

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against Defendant G. Rodriguez for retaliation in violation of the First Amendment. On June 15,

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2011, Plaintiff filed a motion seeking the appointment of counsel.

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I.

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Appointment of Counsel
Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v.

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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require an attorney to

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

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for the Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional

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circumstances the court may request the voluntary assistance of counsel pursuant to section

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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
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).

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

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Plaintiff contends that on May 31, 2011, while he was incarcerated at Corcoran State Prison1, he

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was the victim of an inmate assault during an inmate riot. Plaintiff was attacked by three other

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inmates, and suffered several fractures to his face and his collar bone. Plaintiff has already

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received surgery, and anticipates needing further surgery. Plaintiff’s property was confiscated by

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prison staff. However, based on a review of the record in this case, the Court does not find that

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Plaintiff cannot adequately articulate his claims. Id. The claims in this action are not exceptional

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or complex. The claim is that Defendant Rodriguez deprived Plaintiff of his property in

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retaliation for Plaintiff filing inmate grievances. Accordingly, Plaintiff’s motion for appointment

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of counsel is denied.

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II.

Status Conference

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The Court will require a status conference in this action in light of Plaintiff’s

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circumstances, and to discuss whether trial in this action should be continued to a later date.

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Accordingly, it is HEREBY ORDERED that:

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in Courtroom 9, before Magistrate Judge Dennis L. Beck;

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2.

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Defendant’s counsel is required to arrange for Plaintiff’s participation in this
telephonic conference and to initiate the telephonic conference at [phone].

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This matter is set for telephonic status conference on July 6, 2011, at 11:00 a.m.,

IT IS SO ORDERED.
Dated:

June 20, 2011

/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE

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Though Plaintiff’s current address is listed at San Quentin State Prison, Plaintiff’s proof of service
submitted with his motion indicates that he is currently incarcerated at Corcoran State Prison.

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