Ilsung v. Mobert

Filing 35

ORDER Denying Motion For Appointment Of Counsel (ECF No. 34 ), signed by Magistrate Judge Michael J. Seng on 3/25/2013. (Fahrney, E)

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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Victory Ilsung,
Plaintiff,

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Case No. 1:10-cv-02070-AWI-MJS (PC)
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

v.

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(ECF No. 34)
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Robert Mobert,
Defendant.

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Plaintiff Victory Ilsung, a state prisoner proceeding pro se and in forma pauperis,

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filed this civil rights action on November 8, 2010 pursuant to 42 U.S.C. § 1983. (ECF No.

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1.) The Court screened the First Amended Complaint and ordered service as to cognizable

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claims for First Amendment retaliation and Eighth Amendment medical indifference against

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Defendant Mobert. (ECF No. 14.) On August 3, 2012, Defendant Mobert filed a Motion to

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Dismiss the Eighth Amendment claim pursuant to Fed. R. Civ. P. 12(b) on grounds Plaintiff

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failed to exhaust administrative remedies. (ECF No. 23.) The Court adopted Findings and

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Recommendations denying Defendant’s Motion to Dismiss on March 22, 2013. (ECF No.

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33.)

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Pending before the Court is Plaintiff’s Motion Requesting Appointed Attorney. (ECF
No. 34.)
Plaintiff does not have a constitutional right to appointed counsel in this action, Rand
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). However, in certain exceptional

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circumstances the Court may request the voluntary assistance of counsel pursuant to

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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 will

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

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

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likelihood of success of the merits [and] the ability of the [plaintiff] to articulate his or her

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

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

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request of counsel under section 1915(d). Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th

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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 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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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. Further, Defendant Mobert has not yet

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filed a response. The Court can not make a determination at this early stage of the litigation

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that Plaintiff is likely to succeed on the merits. The retaliation and medical indifference

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claims in issue does not appear to be novel or unduly complex. The facts alleged to date

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appear straightforward and unlikely to involve extensive investigation and discovery.
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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. At present, the Court is

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unable to find that, even considering Plaintiff’s diabetic condition and dialysis treatments,

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he is unable adequately to articulate his claims.
Finally, nothing suggests that Plaintiff has made diligent effort to secure counsel.1

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Plaintiff’s lack of funds alone does not necessarily mean efforts to secure counsel would be

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futile.
For the foregoing reasons, Plaintiff’s Motion Requesting Appointed Attorney (ECF

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No. 34) is HEREBY DENIED, without prejudice.

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IT IS SO ORDERED.

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Dated:

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March 25, 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. January 11, 2011) (cases cited).

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