Serrano v. Rawers et al

Filing 103

ORDER DENYING Plaintiff's Motions (Docs. 93 & 99 ) for Court Appointed Counsel, signed by Magistrate Judge Erica P. Grosjean on 2/24/16. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JESSIE L. SERRANO,

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Plaintiff,
vs.

1:11-cv-00399-EPG-PC
ORDER DENYING PLAINTIFF’S
MOTIONS FOR COURT-APPOINTED
COUNSEL
(ECF Nos. 93, 99.)

SERGEANT JEFFERY L. LUCAS,
Defendant.

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This case is scheduled for trial on March 8, 2016. On February 4, 2016 and February
17, 2016, Plaintiff filed motions for the appointment of counsel. (ECF Nos. 93, 98.)

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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

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for the 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 section

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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
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of 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 exceptional circumstances exist because he has

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been relying on other inmates to litigate for him and has no one to help him prepare for trial.

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Plaintiff also asserts that he has been diagnosed with neurological impairment resulting from a

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gunshot to his head, and he takes two types of seizure medications. Further, Plaintiff asserts

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that he is a mental health prisoner and is taking psychiatric medications. Plaintiff contends that

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there is a high probability he will succeed on the merits at trial, because Defendant admits that

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Plaintiff was severely beaten by inmates and shot on the top of his head by officers.

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Plaintiff has not set forth any evidence that he was diagnosed with neurological

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impairment, and his recent handwritten motions do not reflect mental impairment. That said,

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Plaintiff’s physical and mental issues and lack of knowledge alone do not make Plaintiff’s case

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exceptional. Even if Defendant agrees that Plaintiff was injured, the fact that Plaintiff suffered

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injuries does not prove that Defendant failed to protect Plaintiff. The Court cannot find that

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Plaintiff is likely to prevail on the merits at trial. Plaintiff’s failure-to-protect claims are not

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complex, and based on Plaintiff’s participation in the January 25, 2016 telephonic hearing, it

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appears that Plaintiff can adequately articulate his claims. Thus, the Court does not find the

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required exceptional circumstances, and Plaintiff’s motions shall be denied.

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For the foregoing reasons, IT IS HEREBY ORDERED that Plaintiff=s motions for the
appointment of counsel, filed on February 4, 2016 and February 17, 2016, are DENIED.

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IT IS SO ORDERED.
Dated:

February 24, 2016

/s/
UNITED STATES MAGISTRATE JUDGE

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