Davis v. Villagrana et al

Filing 38

ORDER DENYING 37 Motion to Appoint Counsel signed by Magistrate Judge Sheila K. Oberto on 11/7/2012. (Marrujo, C)

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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11 FRANCIS W. DAVIS,

1:09-cv-01897-AWI-SKO (PC)

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ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

Plaintiff,

13 vs.
(Doc. 37)
14 T. VILLAGRANA,
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Defendant.

16 ________________________________/
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This action is in the discovery phase, and on November 2, 2012, Plaintiff filed a motion

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seeking the appointment of counsel. Plaintiff does not have a constitutional right to the

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appointment of counsel in this action. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009);

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Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). The Court may request the

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voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1), but it will do so only if

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exceptional circumstances exist. Palmer, 560 F.3d at 970; Wilborn v. Escalderon, 789 F.2d

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1328, 1331 (9th Cir. 1986). In making this determination, the Court must evaluate the

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likelihood of success on the merits and the ability of Plaintiff to articulate his claims pro se in

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light of the complexity of the legal issues involved. Palmer, 560 F.3d at 970 (citation and

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quotation marks omitted); Wilborn, 789 F.2d at 1331. Neither consideration is dispositive and

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they must be viewed together. Palmer, 560 F.3d at 970 (citation and quotation marks omitted);

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Wilborn 789 F.2d at 1331.
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In the present case, the Court does not find the required exceptional circumstances.

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Even if it is assumed that Plaintiff is not well versed in the law and that he has made serious

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allegations which, if proved, would entitle him to relief, his case is not exceptional. The Court

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is faced with similar cases almost daily. Further, at this stage in the proceedings, the Court

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cannot make a determination that Plaintiff is likely to succeed on the merits, and based on a

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review of the record in this case, the Court does not find that Plaintiff cannot adequately

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articulate his claims. Id.

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For the foregoing reasons, Plaintiff’s motion for the appointment of counsel is HEREBY
DENIED, without prejudice.

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IT IS SO ORDERED.

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Dated:
i0d3h8

November 7, 2012

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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