Chavarria v. Green et al

Filing 51

ORDER DENYING 48 Motion to Appoint Counsel signed by Magistrate Judge Erica P. Grosjean on 2/8/2016. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(ECF No. 48.)

Plaintiff,

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1:10-cv-02324-DAD-EPG (PC)

ANTHONY CHAVARRIA,

v.
P. A. GREEN, et al.,

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Defendants.

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I.

BACKGROUND

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Anthony Chavarria (“Plaintiff”) is a prisoner proceeding pro se with this civil rights action

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pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on December

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14, 2010. (ECF No. 1.) This action now proceeds on Plaintiff’s initial Complaint against

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defendants Dr. Duenas, Physician’s Assistant (P.A.) Green, and P.A. Wilson (“Defendants”), for

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inadequate medical care in violation of the Eighth Amendment.

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On June 10, 2014, the Court issued a Scheduling Order establishing pretrial deadlines for

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the parties, including deadlines of December 24, 2015 to conduct discovery, and April 20, 2015 to

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file pretrial dispositive motions. (ECF No. 31.) Discovery is now closed.

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On July 24, 2015, Defendants filed a motion for summary judgment for failure to exhaust

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administrative remedies, which is pending. (ECF No. 41.) On January 20, 2016, Plaintiff filed a

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motion for appointment of counsel. (ECF No. 48.)

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II.

MOTION FOR APPOINTMENT OF COUNSEL

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Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v.

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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), 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. United States District Court for

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the Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in

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certain exceptional circumstances the Court may request the voluntary assistance of counsel

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pursuant to 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 seek

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volunteer counsel only in the most serious and exceptional cases.

In determining whether

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Aexceptional circumstances exist, the district court must evaluate both the likelihood of success of

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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).

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In the present case, Plaintiff argues that he is unable to afford counsel, lacks access to

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legal materials, suffers from medical issues, and cannot easily obtain his medical records. This

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alone does not make Plaintiff’s case exceptional. While the Court has found that “[l]iberally

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construed, Plaintiff [states] a [medical] claim for relief against Defendants Green, Duenas and

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Wilson,” this finding is not a determination that Plaintiff is likely to succeed on the merits. (ECF

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No. 10 at 3:23-24.) Plaintiff’s medical claims do not appear complex, and based on a review of

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the record in this case, it appears that Plaintiff can adequately articulate his claims. Thus, the

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Court does not find the required exceptional circumstances, and Plaintiff’s motion shall be denied

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without prejudice to renewal of the motion at a later stage of the proceedings.

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III.

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CONCLUSION
For the foregoing reasons, Plaintiff=s motion for the appointment of counsel is HEREBY

DENIED, without prejudice.

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IT IS SO ORDERED.
Dated:

February 8, 2016

/s/
UNITED STATES MAGISTRATE JUDGE

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