Nettles v. Lopez

Filing 64

ORDER GRANTING 62 Request to Recharacterize this Action as a "PC" Case; ORDER GRANTING 63 Request for Counsel to Withdraw; ORDER DENYING Request for Appointment of Counsel signed by Magistrate Judge Jennifer L. Thurston on 2/14/2017. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAMOUS D. NETTLES,

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Petitioner,

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v.

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RAUL LOPEZ,

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No. 1:11-cv-1201-AWI-JLT (HC)
ORDER GRANTING REQUEST TO
RECHARACTERIZE THIS ACTION AS A
“PC” CASE (Doc. 62)
ORDER GRANTING REQUEST FOR
COUNSEL TO WITHDRAW (Doc. 63)

Respondent.
ORDER DENYING REQUEST FOR
APPOINTMENT OF COUNSEL

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On August 22, 2016, the Court issued an order directing petitioner Damous D. Nettles to

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notify the Court whether he wished his habeas petition to be recharacterized as an action brought

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under 42 U.S.C. § 1983, pursuant to the Ninth Circuit’s 6-5 en banc decision in this case. (Doc.

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No. 55.)

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On February 13, 2017, counsel for Mr. Nettles notified the Court that he wished to have

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the matter recharacterized. (Doc. 62) Thus, the Court DIRECTS the Clerk of the Court to

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recharacterize this case as a “PC” case. Once recharacterized, the Court will screen the pleading

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to determine whether it states any cognizable claims.

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In addition, appointed counsel for petitioner on appeal seeks to withdraw from Mr.

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Nettles’ representation. (Doc. 62) He notes that the Criminal Justice Act does not authorize

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counsel for § 1983 cases and he lacks experience or knowledge of practice in this area. Id. Thus,
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the request is GRANTED and Mr. John Balazs is relieved as Mr. Nettles’ counsel in the § 1983

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proceeding.

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Finally, Mr. Nettles seeks appointment of pro bono counsel. (Doc. 62) Plaintiff does not

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have a constitutional right to appointed counsel in the recharacterized action, Rand v. Rowland,

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113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to represent

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plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the

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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 an

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exceptional circumstance exists, the court must evaluate both “the likelihood of success of the

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

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the legal issues involved.” Rand, 113 F.3d at 1525 (internal quotation marks and citations

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omitted).

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In this case, the court does not find the required exceptional circumstances. First, the

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Court has not yet determined whether Mr. Nettles has or can state any cognizable claims when

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considering all of the issues the Court raised in its order regarding recharacterization (Doc. 55)

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Thus, the court cannot now make a determination that plaintiff is likely to succeed on the merits,

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and based on a review of the record in this case, the court does not find that plaintiff cannot

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adequately articulate his claims. Rand, 113 F.3d at 1525. Second, even if the Court assumes that

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plaintiff is not well-versed in the law and that he has made serious allegations which, if proved,

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would entitle him to relief, his case is not exceptional. This court is faced with similar cases

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daily. Therefore, the request for appointment of counsel is DENIED.

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IT IS SO ORDERED.
Dated:

February 14, 2017

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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