Whitley v. Lopez et al

Filing 22

ORDER denying 21 Motion to Appoint Counsel signed by Magistrate Judge Michael J. Seng on 8/20/2013. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DAVID WHITLEY,

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Plaintiff,

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Case No. 1:10-cv-01499-MJS (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR APPOINTMENT OF COUNSEL

v.

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(ECF No. 21)
HARRINGTON, et al.,

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Defendants.

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Plaintiff David Whitley (“Plaintiff”) is a prisoner proceeding pro se in a civil rights

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action pursuant to 42 U.S.C. § 1983. This matter proceeds on the first amended complaint

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on a failure to protect claim against Defendants Herrera and Cabrera.
Pending before the Court is Plaintiff’s motion seeking appointment of counsel on

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grounds he is pro se and indigent.1
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 cannot 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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Plaintiff supports his motion with an 18 U.S.C. § 3006A (Criminal Justice Act) application for counsel,
apparently filed in 2010 in a separate action.

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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).

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

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The Court cannot make a determination at this early stage of the litigation that Plaintiff is

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likely to succeed on the merits. The alleged failure to protect claim does not appear to be

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novel or unduly complex. The facts alleged to date appear straightforward and unlikely to

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involve any extensive investigation and discovery.

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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 reflect an appreciation of the legal issues

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and standards and an ability to express same adequately in writing. The Court does not

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find that at present, he cannot adequately articulate his claims pro se.

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Finally, it is not clear Plaintiff has exhausted diligent efforts to secure counsel based

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upon his attempts to date.2
For the foregoing reasons, Plaintiff’s motion for appointment of counsel (ECF No.

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21) is HEREBY DENIED, without prejudice.

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IT IS SO ORDERED.

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Dated:

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August 20, 2013

/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. 2011) (cases cited).

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