Gabarrete v. Hazel et al

Filing 48

ORDER Denying Motion For Appointment Of Counsel (ECF No. 47 ), signed by Magistrate Judge Michael J. Seng on 11/27/2012. (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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CARLOS D. GABaRRETE,

CASE No. 1:11-cv-00324-MJS

(PC)

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Plaintiff,
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ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

v.
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(ECF No. 47)
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C. B. Hazel, et al.,

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Defendants.
________________________________/
Plaintiff Carlos D. Gabarrete, a state prisoner proceeding pro se and in forma

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pauperis filed this civil rights action on February 25, 2011 pursuant to 42 U.S.C. § 1983.

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(Compl., ECF No. 1.) Plaintiff has consented to Magistrate Judge jurisdiction. (Consent

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to Jurisdiction, ECF No. 8.) This matter proceeds on Plaintiff’s Fourth Amended

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Complaint claims against Defendants Hazel, Medina, Prudhel, Navarro, Esquivel, G.

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Hernandez and F. Hernandez for excessive force, failure to protect, and medical

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indifference. (Order on Cognizable Claims, ECF No. 37) and is currently out for service.

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Plaintiff filed a motion requesting appointment of counsel on November 26, 2012 (Mot.

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Appt. Counsel, ECF No. 47), which is now before the Court.

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

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Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), partially overruled on other

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grounds, 154 F.3d 952, 954 n.1 (9th Cir. 1998), and the Court cannot require an
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attorney to represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United

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States District Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989).

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However, in certain exceptional circumstances the Court may request the voluntary

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assistance of counsel 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

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

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

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both the likelihood of success of the merits [and] the ability of the [plaintiff] to articulate

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his or her claims pro se in light of the complexity of the legal issues involved.” Id.

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Neither of these factors is dispositive and both must be viewed together before

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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

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(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.

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App’x 830, 831 (9th Cir. 2011) (plaintiff “failed to show exceptional circumstances”);

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Simmons v. Hambly, 14 F. App’x 918, 919 (9th Cir. 2001) (same); Davis v. Yarborough,

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459 F. App’x 601, 602 (9th Cir. 2011) (plaintiff “did not show the ‘exceptional

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circumstances’ required to 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

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

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he has made serious allegations which, if proved, would entitle him to relief, his case is

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not exceptional. This Court is faced with similar cases almost daily. Further, the Court

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cannot make a determination at this early stage of the litigation that Plaintiff is likely to

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succeed on the merits. The cognizable Eighth Amendment claims screened by the

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Court do not appear to be novel or unduly complex. Defendants have not yet appeared

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and the matter remain in dispute. The facts alleged to date appear straightforward and
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unlikely to involve extensive investigation and discovery.

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The record in this case demonstrates sufficient writing ability and legal

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knowledge to articulate the claims asserted. The Court does not find that at present,

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even if Plaintiff has difficulty communicating in English as referenced in his motion, he

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can not adequately articulate his claims pro se.
Additionally, it is not apparent on the record that before bringing this motion

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Plaintiff exhausted diligent effort to secure counsel.1 Plaintiff’s lack of funds alone does

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not demonstrate that efforts to secure counsel necessarily would be futile.
For the foregoing reasons, Plaintiff’s motion for appointment of counsel (ECF No.

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47) is HEREBY DENIED, without prejudice.

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IT IS SO ORDERED.

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Dated:
12eob4

November 27, 2012

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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See, e.g. Thornton v. Schwarzenegger, 2011 W L 90320, *3-4 (S.D. Cal. 2011) (cases cited).

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