Barrow v. California Medical Facility, Corcoran

Filing 101

ORDER DENYING 100 Motion to Appoint Counsel signed by Magistrate Judge Michael J. Seng on 2/20/2014. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RAEKUBIAN A. BARROW,

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Plaintiff,
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v.

Case No. 1:10-cv-00154-LJO-MJS (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR APPOINTMENT OF COUNSEL
(ECF No. 100)

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WARDEN CALIFORNIA MEDICAL
FACILITY, CORCORAN, 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. The matter proceeds against Defendant Martinez

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on an Eighth Amendment excessive force claim. There is a settlement conference set for

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April 3, 2014. Telephonic pretrial conference is set for April 18, 2014. Trial is set for June

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16, 2014.

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

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counsel should be appointed because he is an ADA prisoner; suffers unspecified learning

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and mental disabilities; has limited education and knowledge of the law; lacks ready access

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to his legal materials; can not afford private counsel; and the case is complex and requires
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investigation.

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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 of 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

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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 F. App’x

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

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Hambly, 14 F. App’x. 918, 919 (9th Cir. 2001) (same); Davis v. Yarborough, 459 F. App’x

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601, 602 (9th Cir. 2011) (plaintiff “did not show the ‘exceptional circumstances' required to

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appoint counsel under 28 U.S.C. § 1915(e)(1).”).

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II.

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APPOINTMENT OF COUNSEL DENIED
In the present case, the Court does not find the required exceptional circumstances.

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The Court can not make a determination at this stage of the litigation that Plaintiff is likely to

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succeed on the merits. The single excessive force claim in issue does not appear to be
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novel or unduly complex. The facts alleged to date appear straightforward. The deadlines

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for discovery and dispositive pretrial motions have passed.
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.
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 condition and disability, he is

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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. 100) shall be DENIED without prejudice.

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IT IS SO ORDERED.

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Dated:

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February 20, 2014

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE
DEAC _Signature- END:

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12eob4

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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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