Zuniga v. Jordan et al

Filing 46

ORDER DISCHARGING 44 Order to Show Cause; ORDER DENYING Plaintiff's 45 Motion for Appointment of Counsel signed by Magistrate Judge Barbara A. McAuliffe on 1/1/2012. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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LARRY ZUNIGA,

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CASE NO. 1:09-cv-01208-AWI-BAM PC
Plaintiff,
ORDER DISCHARGING ORDER TO SHOW
CAUSE (ECF No. 44)

v.
CHRIS JORDAN, et al.,

ORDER DENYING PLAINTIFF’S MOTION FOR
APPOINTMENT OF COUNSEL (ECF No. 45)

Defendants.
/

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Plaintiff Larry Zuniga (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

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in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on the complaint,

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filed July 13, 2009, against Defendants Berke, Torres, Henderson, and Jordan for excessive force

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in violation of the Eighth Amendment. This action is currently set for trial on February 28, 2012,

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before the Honorable Anthony W. Ishii.

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On July 15, 2011, a second scheduling order issued directing the parties to file pretrial

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statements. Plaintiff failed to file a pretrial statement by the date set and on December 5, 2011, an

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order to show cause why this action should not be dismissed for Plaintiff’s failure to comply with

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the second scheduling order issued. (ECF No. 44.) On December 19, 2011, Plaintiff filed a response

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stating he had been unable to comply with the deadline and requesting appointment of counsel and

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that the action not be dismissed for his failure to comply. (ECF No. 45.)

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Plaintiff requests appointment of counsel because he is incarcerated in a facility that he states

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does not have a law library. Plaintiff does not have a constitutional right to appointed counsel in this

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

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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 of

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

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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. Even if

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it is 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. The Court has reviewed the pleading filed in this action and finds that

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Plaintiff is able to adequately articulate his claims.

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Although Plaintiff states that the facility does not have a law library, Plaintiff is incarcerated

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at California State Prison, Corcoran, and the Court is aware that the prison does have law libraries

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available to inmates. At this point in the action Plaintiff is preparing for trial. To the extent that

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Plaintiff lacks physical access to one of the law libraries, the Court fails to see why physical access

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to the law library would be necessary. To ensure fairness to pro se litigants, the Court prepares the

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jury instructions, verdict forms, and a statement of the case. Plaintiff’s motion for appointment of

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counsel is denied.

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

The order to show cause, issued December 5, 2011, is DISCHARGED; and

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2.

Plaintiff’s motion for appointment of counsel, filed December 19, 2011, is DENIED.

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IT IS SO ORDERED.
Dated:
10c20k

January 1, 2012

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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