Bejarano v. Allison

Filing 58

ORDER DENYING Plaintiff's 57 Motion to Appoint Counsel signed by Magistrate Judge Stanley A. Boone on 4/13/2015. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BOB BEJARANO,

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Plaintiff,
v.
KATHLEEN ALLISON, et al.,
Defendants.

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Case No.: 1:11-cv-00016-AWI-SAB (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR APPOINTMENT OF COUNSEL
[ECF No. 57]

Plaintiff Bob Bejarano is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.

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On April 9, 2015, Plaintiff filed a motion for the appointment of counsel.

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This action is proceeding against Defendants Allison, Goss, Hernandez, and Perez for

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subjecting Plaintiff to conditions of confinement in violation of the Eighth Amendment.
In the present motion for appointment of counsel, Plaintiff seeks counsel because his claims

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are colorable, he is indigent and lacks the ability to investigate crucial facts, the nature of the evidence

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indicates the truth will likely be exposed if both sides are represented by counsel, and the complexity

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of the legal issues warrant counsel.

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There is no constitutional right to appointed counsel in this action, Rand v. Rowland, 113 F.3d

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1520, 1525 (9th Cir. 1997), and the court cannot require any attorney to represent plaintiff pursuant to

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28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa, 490
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U.S. 296, 298 (1989). However, in certain exceptional circumstances the court may request the

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voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525.
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, the district court must evaluate both the likelihood of success on the

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

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legal issues involved.” Id. (internal quotation marks and citations omitted).
In the present case, the Court does find that neither the interests of justice nor exceptional

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circumstances warrant appointment of counsel at this time. LaMere v. Risley, 827 F.2d 622, 626 (9th

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Cir. 1987); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). The Court previously denied

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Plaintiff’s requests and nothing has substantially changed in this case since that time to change the

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Court’s analysis. Plaintiff is proceeding on a claim of denial of outdoor exercise in violation of the

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Eighth Amendment and the legal issues present in this action are not complex, and Plaintiff has to date

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demonstrated reasonable writing ability and legal knowledge.
While a pro se litigant may be better served with the assistance of counsel, so long as a pro se

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litigant, such as Plaintiff in this instance, is able to “articulate his claims against the relative

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complexity of the matter,” the “exceptional circumstances” which might require the appointment of

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counsel do not exist. Rand v. Rowland, 113 F.3d at 1525 (finding no abuse of discretion under 28

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U.S.C. § 1915(e) when district court denied appointment of counsel despite fact that pro se prisoner

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“may well have fared better-particularly in the realm of discovery and the securing of expert

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testimony.”) Plaintiff’s claim that he would be better served with counsel to investigate and present

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evidence, such circumstance is not exceptional. Accordingly, Plaintiff motion for appointment of

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counsel is DENIED, without prejudice.

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IT IS SO ORDERED.

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Dated:

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April 13, 2015
UNITED STATES MAGISTRATE JUDGE

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