Hasan v. Johnson

Filing 86

ORDER Denying 85 Plaintiff's Motion to Appoint Counsel, signed by Magistrate Judge Gary S. Austin on 11/29/12. (Verduzco, M)

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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JAWWAAD HASAN,

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1:08-cv-00381-GSA-PC

Plaintiff,

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vs.

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ORDER DENYING PLAINTIFF'S MOTION
FOR APPOINTMENT OF COUNSEL

C/O JOHNSON,

(Doc. 85.)
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Defendant.

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________________________________/

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I.

BACKGROUND

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Jawwaad Hasan (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights

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action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on March 17, 2008. (Doc. 1.)

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The case now proceeds on the original Complaint against defendant Correctional Officer

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Johnson, on Plaintiff’s claims for excessive force under the Eighth Amendment. Id. On

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November 16, 2012, Plaintiff filed a motion seeking the appointment of counsel. (Doc. 85.)

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II.

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MOTION FOR 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, 109 S.Ct. 1814, 1816 (1989). However,

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in certain exceptional circumstances the court may request the voluntary assistance of counsel
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pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. Without a reasonable method of

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securing and compensating counsel, the court will seek volunteer counsel only in the most

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serious and exceptional cases. In determining whether “exceptional circumstances exist, the

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district court must evaluate both the likelihood of success of the merits [and] the ability of the

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[plaintiff] to articulate his claims pro se in light of the complexity of the legal issues involved.”

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Id. (internal quotation marks and citations omitted).

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Plaintiff filed two prior motions for appointment of counsel in this action, on April 9,

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2008 and October 21, 2011. (Docs. 9, 32.) Plaintiff refers back to the Court’s order denying

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his motion of October 21, 2011, in which the court found that the “exceptional circumstances”

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required by the Ninth Circuit in Rand, 113 F.3d 1525, were not present in Plaintiff’s case.

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Plaintiff argues that the Court should apply the legal standards used by the Second, Seventh,

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and Eighth Circuits, which require the court to give serious consideration to the appointment of

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counsel if the plaintiff’s claim has merit. Plaintiff also argues that he is eligible for

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appointment of counsel because he has moderate deficits in visual memory, verbal language

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skills, and visual motor interrogation affecting reading and spelling, and a writing disability.

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He also claims that the conditions of his incarceration make it difficult to litigate his claims.

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Plaintiff requests the Court to also consider the complexity of his particular legal issues and his

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difficulty understanding legal procedures.

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III.

DISCUSSION

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With respect to Plaintiff’s suggestion that the Court use different legal standards, it is

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well established that this Court is bound by Ninth Circuit precedent.1 Therefore, the Court may

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not use the legal standards from the Second, Seventh, and Eighth Circuits cited by Plaintiff.

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With respect to Plaintiff’s requests for the Court to consider the merits of his case and

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his legal skills and abilities when deciding his motions for appointment of counsel, the Court

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already considers these factors. The Ninth Circuit’s “exceptional circumstances” standard

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requires the court to “evaluate both the likelihood of success of the merits [and] the ability of

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A federal district court is bound by the law of its own circuit. See Zuniga v. United Can Company, 812
F.2d 443 (9th Cir. 1987); also see United States v. AMC Entertainment, Inc., 549 F.3d 760 (9th Cir. 2007).

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the [plaintiff] to articulate his claims pro se in light of the complexity of the legal issues

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involved.” Rand, 113 F.3d at 1525.

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

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Court has reviewed Plaintiff’s allegations of excessive force and cannot determine at this

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juncture that Plaintiff is likely to succeed on the merits. To succeed, Plaintiff must prove that

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defendant Johnson applied force against him maliciously and sadistically to cause harm, and not

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in a good-faith effort to restore discipline. Hudson v. McMillian, 503 U.S. 1, 5, 112 S.Ct. 995

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(1992). Based on the record in this case, the Court does not find that Plaintiff cannot

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adequately articulate his claims. Even if it is assumed that Plaintiff is not well versed in the law

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

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not exceptional. Moreover, Plaintiff’s claim – that he was subjected to excessive force – is not

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complex, and the court is faced with similar cases almost daily. Therefore, Plaintiff’s motion

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shall be denied, without prejudice to renewal of the motion at a later stage of the proceedings.

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IV.

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CONCLUSION
For the foregoing reasons, Plaintiff’s motion for the appointment of counsel, filed on

November 16, 2012, is HEREBY DENIED, without prejudice.
IT IS SO ORDERED.
Dated:
220hhe

November 29, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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