Holt v. Nicholas et al

Filing 170

ORDER DENYING 163 Motion to Appoint Counsel signed by Magistrate Judge Stanley A. Boone on 10/5/15. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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VIRGIL E. HOLT,

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Plaintiff,
v.
R. NICHOLAS, et al.,
Defendants.

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) Case No.: 1:09-cv-00800-SAB (PC)
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Plaintiff Virgil E. Holt is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.

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This case is currently set for jury trial on January 19, 2016.

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On October 1, 2015, Plaintiff filed a motion for the appointment of counsel.

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This action is proceeding against Defendants Nicholas, Holguin, Ortega, Machado, and Juden

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for excessive force, failure to intervene and deliberate indifference to a serious medical need, and

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against Defendant Velasco for deliberate indifference to a serious medical need in violation of the

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Eighth Amendment.

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As Plaintiff has previously been advised there is no constitutional right to appointed counsel in

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this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require any

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

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Court 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.
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 on the

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merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the

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legal issues involved.” Id. (internal quotation marks and citations omitted).

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In the present case, the Court finds that neither the interests of justice nor exceptional

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circumstances warrant appointment of counsel at this time. LaMere v. Risley, 827 F.2d 622, 626 (9th

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Cir. 1987); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). While counsel may be able to

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cross-examine witnesses at trial, so long as a pro se litigant, like Plaintiff in this case, is able to

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“articulate his claims against the relative complexity of the matter,” the “exceptional circumstances”

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which might require the appointment of counsel do not exist. Rand, 113 F.3d at 1525 (finding no

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abuse of discretion under 28 U.S.C. § 1915(e) when district court denied appointment of counsel

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despite fact that pro se prisoner “may well have fared better-particular in the realms of discovery and

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the security of expert testimony.”) Indeed, any pro se litigant “would be better served with the

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assistance of counsel.” Id.
In this case, Plaintiff is proceeding on his claims of excessive force, failure to intervene and

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deliberate indifference to a serious medical need, and to date, Plaintiff has demonstrated an ability to

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articulate the factual and legal basis for his arguments and has effectively litigated this case. Based on

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the information presently before the Court, it is clear that Plaintiff has the competence necessary to

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pursue this case to trial. Accordingly, Plaintiff’s motion for the appointment of counsel is DENIED.

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IT IS SO ORDERED.

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Dated:

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October 5, 2015
UNITED STATES MAGISTRATE JUDGE

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