Polanco v. Department of Corrections et al
ORDER DENYING Plaintiff's 9 11 20 Motions for Hearing; ORDER DENYING Plaintiff's 18 Motion to Appoint Counsel signed by Magistrate Judge Barbara A. McAuliffe on 11/3/2011. (Sant Agata, S)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
CASE NO. 1:11-cv-01421-BAM PC
ORDER DENYING PLAINTIFF’S MOTIONS
(ECF No. 9, 11, 20)
DEPARTMENT OF CORRECTIONS, et al.,
ORDER DENYING PLAINTIFF’S MOTION
FOR APPOINTMENT OF COUNSEL
/ (ECF No. 18)
Plaintiff Rigoberto Polanco (“Plaintiff”) is a state prisoner proceeding pro se and in forma
pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On August 26, 2011, an order
issued striking the complaint for lack of signature and ordering Plaintiff to file a signed complaint
within thirty days. On September 12, 2011, Plaintiff filed a motion for a hearing on appointment of
counsel. On September 16, 2011, Plaintiff filed a signed complaint. A duplicate motion for a
hearing was filed on September 20, 2011. Plaintiff filed a motion for appointment of counsel on
October 24, 2011, and a motion for a telephonic court appearance on his motion for appointment of
counsel on November 2, 2011.
The court finds that a hearing is not needed at this stage of the litigation. The court is
required to screen complaints brought by prisoners seeking relief against a governmental entity or
officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court screens complaints
in the order in which they are filed and strives to avoid delays whenever possible. However, there
are hundreds of prisoner civil rights cases presently pending before the Court, and delays are
inevitable despite the Court’s best efforts. Due to the heavy caseload, Plaintiff’s complaint is still
awaiting screening. The Court is aware of the pendency of this case and will screen Plaintiff’s
complaint in due course.
Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v.
Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to represent
plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern
District of Iowa, 490 U.S. 296, 298, 109 S. Ct. 1814, 1816 (1989). However, in certain exceptional
circumstances the court may request the 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
volunteer counsel only in the most serious and exceptional cases. In determining whether
“exceptional circumstances exist, the district court must evaluate both the likelihood of success of
the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity
of the legal issues involved.” Id. (internal quotation marks and citations omitted).
In the present case, the court does not find the required exceptional circumstances. Even if
it is assumed that plaintiff is not well versed in the law and that he has made serious allegations
which, if proved, would entitle him to relief, his case is not exceptional. This court is faced with
similar cases almost daily. Further, at this early stage in the proceedings, the court cannot make a
determination that plaintiff is likely to succeed on the merits, and based on a review of the record
in this case, the court does not find that plaintiff cannot adequately articulate his claims. Id.
For the foregoing reasons, it is HEREBY ORDERED that:
Plaintiff’s motions for a hearing, filed September 12, 2011, September 20, 2011, and
November 2, 2011, are DENIED; and
Plaintiff’s motion for the appointment of counsel is DENIED, without prejudice.
IT IS SO ORDERED.
November 3, 2011
/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE
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