Franklin v. United States

Filing 39

ORDER denying 38 Motion to Appoint Counsel signed by Magistrate Judge Michael J. Seng on 11/1/2012. (Lundstrom, T)

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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EMERY I. FRANKLIN,

CASE No.

1:10-cv-00142-LJO-MJS PC

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Plaintiff,
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ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

vs.
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(ECF No. 38)
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UNITED STATES,

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Defendant.
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________________________________/
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On January 20, 2010, Plaintiff Emery Franklin, a federal prisoner proceeding pro
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se and in forma pauperis, filed this civil action pursuant to the Federal Tort Claims Act
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(“FTCA”). (Compl., ECF No. 1.) On October 29, 2012, Plaintiff filed a motion to appoint
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counsel (Mot. Appt. Counsel, ECF No. 38), which is now before the Court.
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Plaintiff does not have a constitutional right to appointed counsel in this action,
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Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (partially overruled on other
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grounds, 154 F.3d 952, 954 n.1 (9th Cir. 1998)), 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
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States District Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989).
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However, in certain exceptional circumstances the Court may request the voluntary
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assistance of counsel 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
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will seek volunteer counsel only in the most serious and exceptional cases. In

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determining whether “exceptional circumstances exist, the district court must evaluate

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both the likelihood of success of the merits [and] the ability of the [plaintiff] to articulate

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his claims pro se in light of the complexity of the legal issues involved.” Id. Neither of

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these factors is dispositive and both must be viewed together before reaching a

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decision on request of counsel under section 1915(d). Wilborn v. Escalderon, 789 F.2d

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1328, 1331 (9th Cir. 1986); Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009).

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The burden of demonstrating exceptional circumstances is on the plaintiff. See

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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”); accord, Alvarez v. Jacquez, 415 Fed.

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Appx. 830, 831 (9th Cir. 2011) (plaintiff “failed to show exceptional circumstances”);

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Simmons v. Hambly, 14 Fed. Appx. 918, 919 (9th Cir. 2001) (same); Davis v.

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Yarborough, 459 Fed. Appx. 601, 602 (9th Cir. 2011) (plaintiff “did not show the

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‘exceptional circumstances’ required to appoint counsel under 28 U.S.C. § 1915(e)(1)”).

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In the present case, the Court does not find the required exceptional

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circumstances. Even if it is assumed that Plaintiff is not well versed in the law and that

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

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not exceptional. This Court is faced with similar cases almost daily. Further, the Court

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cannot make a determination at this early stage of the litigation that Plaintiff is likely to

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succeed on the merits. The negligence issues underlying his presently cognizable

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Federal Tort Claims Act claim against Defendant the United States do not appear to be

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novel or unduly complex, and remain in dispute. The facts alleged relating to the

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December 17, 2008 incident appear straightforward and unlikely to involve extensive

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investigation and discovery.

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The record in this case including the operative Second Amended Complaint

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demonstrate sufficient writing ability and legal knowledge to articulate the claim

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asserted. The Court does not find that at present, Plaintiff can not adequately articulate

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his claim.
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Additionally, it is not apparent on the record that before bringing this motion

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Plaintiff’s unspecified “repeated efforts” exhausted diligent effort to secure counsel.1

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Plaintiff’s lack of funds alone does not demonstrate that efforts to secure counsel

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necessarily would be futile.
Plaintiff’s request that the Court appoint a particular attorney as referenced in his

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motion (Mot. Appt. Counsel at 2 ¶ 4), is denied for the reasons state above.
For the foregoing reasons, Plaintiff’s motion for appointment of counsel (ECF No.

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38) is HEREBY DENIED, without prejudice.

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IT IS SO ORDERED.

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Dated:
12eob4

November 1, 2012

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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See e.g. Thornton v. Schwarzenegger, 2011 W L 90320, *3-4 (S.D. Cal. 2011) (cases cited).

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