Caver v. Gomez et al

Filing 97

ORDER DENYING 96 Motion to Appoint Counsel signed by Magistrate Judge Sheila K. Oberto on 9/4/2015. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DENELL CAVER,
Plaintiff,

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v.

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E. GOMEZ, et al.,

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Case No. 1:11-cv-01025-AWI-SKO (PC)
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL, WITHOUT
PREJUDICE
(Doc. 96)

Defendants.
_____________________________________/

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Plaintiff Denell Caver, a state prisoner proceeding pro se and in forma pauperis, filed this

17 civil rights action pursuant to 42 U.S.C. § 1983 on June 20, 2011. This action is proceeding on
18 Plaintiff’s second amended complaint, filed on April 10, 2012, against Defendants Gomez, Stark,
19 and Garcia for acting with deliberate indifference to Plaintiff’s safety, in violation of the Eighth
20 Amendment of the United States Constitution. Jury trial is scheduled for February 9, 2016.
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On August 31, 2015, Plaintiff filed a motion seeking the appointment of counsel. Plaintiff

22 does not have a constitutional right to the appointment of counsel in this action. Palmer v. Valdez,
23 560 F.3d 965, 970 (9th Cir. 2009); Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). The
24 Court may request the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1), but it
25 will do so only if exceptional circumstances exist.

Palmer, 560 F.3d at 970; Wilborn v.

26 Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). In making this determination, the Court must
27 evaluate the likelihood of success on the merits and the ability of Plaintiff to articulate his claims
28 pro se in light of the complexity of the legal issues involved. Palmer, 560 F.3d at 970 (citation

1 and quotation marks omitted); Wilborn, 789 F.2d at 1331. Neither consideration is dispositive and
2 they must be viewed together. Palmer, 560 F.3d at 970 (citation and quotation marks omitted);
3 Wilborn 789 F.2d at 1331.
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In the present case, the Court does not find the required exceptional circumstances. Even

5 if it is assumed that Plaintiff is not well versed in the law and that he has made serious allegations
6 which, if proved, would entitle him to relief, his case is not exceptional. The Court is faced with
7 similar cases almost daily. Further, the Court cannot make a determination that Plaintiff is likely
8 to succeed on the merits, and based on a review of the record in this case, the Court does not find
9 that Plaintiff cannot adequately articulate his claims. Palmer, 560 F.3d at 970.
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While the Court recognizes that Plaintiff is at a disadvantage due to his pro se status and

11 his incarceration, the test is not whether Plaintiff would benefit from the appointment of counsel.
12 See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (“Most actions require
13 development of further facts during litigation and a pro se litigant will seldom be in a position to
14 investigate easily the facts necessary to support the case.”) The test is whether exceptional
15 circumstances exist and here, at this juncture, they do not.
Accordingly, Plaintiff’s motion for the appointment of counsel is HEREBY DENIED.

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IT IS SO ORDERED.

19 Dated:

September 4, 2015

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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