Porter v. Wegman et al

Filing 195

ORDER Denying 192 Motion to Appoint Counsel, signed by Magistrate Judge Barbara A. McAuliffe on 8/19/17. (Gonzalez, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BRIAN ELLIS PORTER, 12 13 14 15 Plaintiff, Case No. 1:10-cv-01500-BAM (PC) ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL v. (ECF No. 192) C. WEGMAN, Defendant. 16 17 Plaintiff Brian Ellis Porter (“Plaintiff”) is a state prisoner proceeding pro se and in forma 18 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This matter is set for trial on 19 August 29, 2017. Currently before the Court is Plaintiff’s motion for appointment of counsel, 20 filed August 16, 2017. (ECF No. 192.) Defendant has not yet responded to the request, but the 21 Court finds no response necessary and that Defendant will not be prejudiced by the consideration 22 of the motion absent her response. Local Rule 230(l). 23 Plaintiff states that he is unable to afford counsel, has written to many law firms, 24 attorneys, and prison rights advocates that have declined to take his case pro bono, and the 25 complexity of this case extends beyond Plaintiff’s ability to litigate as a lay person with limited 26 access to a law library. Plaintiff contends that the expertise of an attorney is needed to address 27 the defense of qualified immunity, to cross examine Defendant’s expert witnesses, and to 28 properly argue Plaintiff’s position before a jury. Finally, Plaintiff seeks the appointment of 1 1 counsel because Defendant has failed to produce requested discovery documents within 2 Defendant’s control. (Id.) 3 As Plaintiff was previously informed, he does not have a constitutional right to appointed 4 counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on 5 other grounds, 154 F.3d 952, 954 n.1 (9th Cir. 1998), and the court cannot require an attorney to 6 represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. U.S. Dist. Court for the S. Dist. 7 of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the court may 8 request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 9 1525. 10 Without a reasonable method of securing and compensating counsel, the Court will seek 11 volunteer counsel only in the most serious and exceptional cases. In determining whether 12 “exceptional circumstances exist, a district court must evaluate both the likelihood of success on 13 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 14 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). The Court has considered Plaintiff’s renewed motion for the appointment of counsel, but 15 16 does not find the required exceptional circumstances. Even if it is assumed that Plaintiff is not 17 well versed in the law and that he has made serious allegations which, if proved, would entitle 18 him to relief, his case is not exceptional. This Court is faced with similar cases involving claims 19 of free exercise of religion filed by prisoners proceeding pro se and in forma pauperis almost 20 daily. These prisoners also must conduct legal research and prosecute claims without the 21 assistance of counsel. Plaintiff’s assertions regarding the complexity of the legal issues in this case have been 22 23 taken into consideration. Although Plaintiff believes that he will be unable to articulate the merits 24 of his case to a jury, the record indicates that Plaintiff has successfully prosecuted this action to 25 date, through summary judgment, appeal, and up to the eve of trial. Plaintiff has filed numerous 26 motions throughout this action, and his papers generally have been coherent and organized. 27 Based on the record in this case, the Court does not find that Plaintiff is unable to articulate his 28 claims. 2 1 To the extent Plaintiff seeks appointment of counsel to rectify discovery disputes with 2 Defendant, these issues were more appropriately raised through motions to compel filed before 3 the close of discovery, not on the eve of trial. Indeed, Plaintiff filed an articulate and timely 4 motion to compel production of the Religious Diet Request form submitted in 2008. (ECF No 5 109.) Plaintiff was well aware of the proper method of seeking relief regarding other documents 6 not produced in response to his discovery requests. The Court finds Plaintiff’s argument that his 7 failure to obtain such documents was a result of his lack of counsel, first raised at this late date, 8 unpersuasive. 9 Finally, Plaintiff has offered no argument addressing the likelihood of his success on the 10 merits, and the Court cannot find that he meets that prong. Although the Court has determined 11 Plaintiff has stated some claims which may proceed to trial, it has not determined that those 12 claims have a likelihood of ultimately being successful. 13 14 For the foregoing reasons, Plaintiff’s motion for the appointment of counsel (ECF No. 192) is DENIED, without prejudice. 15 16 17 IT IS SO ORDERED. Dated: /s/ Barbara August 19, 2017 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 3

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