Ilsung v. Mobert

Filing 51

ORDER Denying 45 Motion to Appoint Counsel, signed by Magistrate Judge Michael J. Seng on 05/06/14. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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VICTORY ILSUNG,

Case No. 1:10-cv-02070-AWI-MJS (PC)

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Plaintiff,

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v.
(ECF No. 45)

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ORDER DENYING PLAINTIFF’S MOTION
FOR APPOINTMENT OF COUNSEL

ROBERT MOBERT,
Defendants.

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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 pursuant to 42 U.S.C. § 1983. The matter proceeds on retaliation

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and medical indifference claims against Defendant Mobert.

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On March 26, 2013, Plaintiff’s motion to appoint counsel was denied without

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prejudice. (ECF No. 35.) On February 14, 2014, Plaintiff sought reconsideration and/or

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appointment of counsel. (ECF No. 45.) On February 19, 2014, the Court denied

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reconsideration of the March 26, 2013 order. (ECF No. 46.)

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Before the Court is Plaintiff’s February 14, 2014 motion for appointment of counsel.

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He asserts counsel should be appointed because: he lacks funds to retain private counsel,

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the case is complex and requires investigation and discovery, he has limited education and
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knowledge of the law and library access, trial will likely involve conflicting evidence, and he

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may give testimony which might later be used against him in a criminal prosecution.

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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 cannot require an attorney to represent

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him 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
There are not exceptional circumstances supporting appointment of counsel. The

Court cannot make a determination at this stage of the litigation that Plaintiff is likely to
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succeed on the merits. The claims alleged do not appear to be novel or unduly complex.

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The facts alleged to date appear straightforward and unlikely to involve any extensive

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investigation and discovery. Even if it is assumed that Plaintiff is not well versed in the law

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and that he has made serious allegations which, if proved, would entitle him to relief, his

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case is not exceptional. This Court is faced with similar cases almost daily.
The papers filed by Plaintiff in this case reflect an appreciation of the legal issues

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and standards relating to retaliation and medical indifference and an ability to express

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same adequately in writing. The Court does not find that at present he cannot adequately

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articulate his claims pro se.
Finally, Plaintiff makes no showing that he has exhausted diligent efforts to secure

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counsel. His lack of funds alone does not demonstrate that efforts to secure counsel

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necessarily would be futile.1

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III.

For the reasons stated, it is HEREBY ORDERED that Plaintiff’s motion for

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ORDER

appointment of counsel (ECF No. 45) is DENIED, without prejudice.

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IT IS SO ORDERED.

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Dated:

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May 6, 2014

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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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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