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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BRIAN ELLIS PORTER,

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Plaintiff,

Case No. 1:10-cv-01500-BAM (PC)
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

v.
(ECF No. 192)
C. WEGMAN,
Defendant.

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Plaintiff Brian Ellis Porter (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This matter is set for trial on

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August 29, 2017. Currently before the Court is Plaintiff’s motion for appointment of counsel,

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filed August 16, 2017. (ECF No. 192.) Defendant has not yet responded to the request, but the

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Court finds no response necessary and that Defendant will not be prejudiced by the consideration

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of the motion absent her response. Local Rule 230(l).

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Plaintiff states that he is unable to afford counsel, has written to many law firms,

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attorneys, and prison rights advocates that have declined to take his case pro bono, and the

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complexity of this case extends beyond Plaintiff’s ability to litigate as a lay person with limited

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access to a law library. Plaintiff contends that the expertise of an attorney is needed to address

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the defense of qualified immunity, to cross examine Defendant’s expert witnesses, and to

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properly argue Plaintiff’s position before a jury. Finally, Plaintiff seeks the appointment of
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counsel because Defendant has failed to produce requested discovery documents within

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Defendant’s control. (Id.)

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As Plaintiff was previously informed, he does not have a constitutional right to appointed

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counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on

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other grounds, 154 F.3d 952, 954 n.1 (9th Cir. 1998), and the court cannot require an attorney to

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represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. U.S. Dist. Court for the S. Dist.

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of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the court may

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request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at

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1525.

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Without a reasonable method of securing and compensating counsel, the Court will seek

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volunteer counsel only in the most serious and exceptional cases. In determining whether

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“exceptional circumstances exist, a district court must evaluate both the likelihood of success on

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the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the

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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

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does not find the required exceptional circumstances. Even if it is assumed that Plaintiff is not

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well versed in the law and that he has made serious allegations which, if proved, would entitle

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him to relief, his case is not exceptional. This Court is faced with similar cases involving claims

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of free exercise of religion filed by prisoners proceeding pro se and in forma pauperis almost

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daily. These prisoners also must conduct legal research and prosecute claims without the

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assistance of counsel.
Plaintiff’s assertions regarding the complexity of the legal issues in this case have been

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taken into consideration. Although Plaintiff believes that he will be unable to articulate the merits

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of his case to a jury, the record indicates that Plaintiff has successfully prosecuted this action to

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date, through summary judgment, appeal, and up to the eve of trial. Plaintiff has filed numerous

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motions throughout this action, and his papers generally have been coherent and organized.

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Based on the record in this case, the Court does not find that Plaintiff is unable to articulate his

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claims.
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To the extent Plaintiff seeks appointment of counsel to rectify discovery disputes with

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Defendant, these issues were more appropriately raised through motions to compel filed before

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the close of discovery, not on the eve of trial. Indeed, Plaintiff filed an articulate and timely

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motion to compel production of the Religious Diet Request form submitted in 2008. (ECF No

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109.) Plaintiff was well aware of the proper method of seeking relief regarding other documents

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not produced in response to his discovery requests. The Court finds Plaintiff’s argument that his

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failure to obtain such documents was a result of his lack of counsel, first raised at this late date,

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unpersuasive.

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Finally, Plaintiff has offered no argument addressing the likelihood of his success on the

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merits, and the Court cannot find that he meets that prong. Although the Court has determined

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Plaintiff has stated some claims which may proceed to trial, it has not determined that those

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claims have a likelihood of ultimately being successful.

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For the foregoing reasons, Plaintiff’s motion for the appointment of counsel (ECF No.
192) is DENIED, without prejudice.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

August 19, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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