Salazar v. Sullivan, et al.

Filing 46

ORDER DENYING 44 Motion to Appoint Counsel signed by Magistrate Judge Michael J. Seng on 2/28/2014. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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EDDIE SALAZAR,

Case No. 1:09-cv-02264-AWI-MJS (PC)

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Plaintiff,

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v.

ORDER DENYING PLAINTIFF’S MOTION
FOR APPOINTMENT OF COUNSEL
(ECF No. 44)

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SULLIVAN, et al.,

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Defendants.
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights

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action filed pursuant to 42 U.S.C. § 1983. This matter proceeds against Defendants T.

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Schwartz, M. Kalvelage, and E. Arnold on an equal protection claim.

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Before the Court is Plaintiff’s Motion for Appointment of Counsel. He argues private

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counsel should be appointed because his ability to prosecute the case is limited by: high

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blood pressure, diabetes, depression and stress disorder and related medication, restricted

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access to the law library and legal assistance from other inmates, the complexity of issues

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presented and investigation and research, and his inability to afford private counsel.
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I.

LEGAL STANDARD
Plaintiff does not have a constitutional right to appointed counsel in this action, Rand

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v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), partially overruled on other grounds, 154

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F.3d 952, 954 n.1 (9th Cir. 1998), and the Court can not require an attorney to represent

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

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Southern District of Iowa, 490 U.S. 296, 298 (1989). In certain exceptional circumstances

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the Court may request the voluntary assistance of counsel pursuant to section 1915(e)(1).

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Rand, 113 F.3d at 1525. However, without a reasonable method of securing and

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compensating counsel, the Court will seek volunteer counsel only in the most serious and

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exceptional cases. In determining whether “exceptional circumstances exist, the district

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

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

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involved.” Id. Neither of these factors is dispositive and both must be viewed together

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before reaching a decision on request of counsel under section 1915(d). Wilborn v.

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Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); Palmer v. Valdez, 560 F.3d 965, 970 (9th

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Cir. 2009).
The burden of demonstrating exceptional circumstances is on the Plaintiff. See e.g.,

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Palmer, 560 F.3d at 970 (plaintiff “has not made the requisite showing of exceptional

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circumstances for the appointment of counsel”).

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II.

DISCUSSION

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Plaintiff has not supported the required exceptional circumstances. The Court can

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not make a determination at this stage of the litigation that Plaintiff is likely to succeed on

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the merits. The single equal protection claim in issue does not appear to be novel or unduly

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complex. The facts alleged to date appear straightforward. The deadlines for discovery and

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dispositive pretrial motions have passed.

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

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

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This Court is faced with similar cases almost daily.
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The papers filed by Plaintiff in this case continue to reflect an appreciation of the

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legal issues and standards and an ability to express same adequately in writing. At present,

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the Court is unable to find that, even considering Plaintiff’s medical condition and treatment,

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he is unable adequately to articulate his claim.
Finally, it is not clear Plaintiff has exhausted diligent efforts to secure counsel.1

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III.

Accordingly, for the foregoing reasons, Plaintiff’s Motion for Appointment of Counsel

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ORDER

(ECF No. 44) is DENIED without prejudice.

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IT IS SO ORDERED.

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Dated:

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February 28, 2014

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE
DEAC _Signature- END:

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See e.g., Thornton v. Schwarzenegger, 2011 WL 90320, *3–4 (S.D. Cal. January 11, 2011) (cases cited).

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