Polanco v. Department of Corrections et al

Filing 21

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)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 RIGOBERTO POLANCO, 10 11 CASE NO. 1:11-cv-01421-BAM PC Plaintiff, ORDER DENYING PLAINTIFF’S MOTIONS FOR HEARING v. (ECF No. 9, 11, 20) 12 DEPARTMENT OF CORRECTIONS, et al., ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL 13 Defendants. 14 / (ECF No. 18) 15 Plaintiff Rigoberto Polanco (“Plaintiff”) is a state prisoner proceeding pro se and in forma 16 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On August 26, 2011, an order 17 issued striking the complaint for lack of signature and ordering Plaintiff to file a signed complaint 18 within thirty days. On September 12, 2011, Plaintiff filed a motion for a hearing on appointment of 19 counsel. On September 16, 2011, Plaintiff filed a signed complaint. A duplicate motion for a 20 hearing was filed on September 20, 2011. Plaintiff filed a motion for appointment of counsel on 21 October 24, 2011, and a motion for a telephonic court appearance on his motion for appointment of 22 counsel on November 2, 2011. 23 The court finds that a hearing is not needed at this stage of the litigation. The court is 24 required to screen complaints brought by prisoners seeking relief against a governmental entity or 25 officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court screens complaints 26 in the order in which they are filed and strives to avoid delays whenever possible. However, there 27 are hundreds of prisoner civil rights cases presently pending before the Court, and delays are 28 1 1 inevitable despite the Court’s best efforts. Due to the heavy caseload, Plaintiff’s complaint is still 2 awaiting screening. The Court is aware of the pendency of this case and will screen Plaintiff’s 3 complaint in due course. 4 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 5 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to represent 6 plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern 7 District of Iowa, 490 U.S. 296, 298, 109 S. Ct. 1814, 1816 (1989). However, in certain exceptional 8 circumstances the court may request the voluntary assistance of counsel pursuant to section 9 1915(e)(1). Rand, 113 F.3d at 1525. 10 Without a reasonable method of securing and compensating counsel, the court will seek 11 volunteer counsel only in the most serious and exceptional cases. In determining whether 12 “exceptional circumstances exist, the district court must evaluate both the likelihood of success of 13 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity 14 of the legal issues involved.” Id. (internal quotation marks and citations omitted). 15 In the present case, the court does not find the required exceptional circumstances. Even if 16 it is assumed that plaintiff is not well versed in the law and that he has made serious allegations 17 which, if proved, would entitle him to relief, his case is not exceptional. This court is faced with 18 similar cases almost daily. Further, at this early stage in the proceedings, the court cannot make a 19 determination that plaintiff is likely to succeed on the merits, and based on a review of the record 20 in this case, the court does not find that plaintiff cannot adequately articulate his claims. Id. 21 For the foregoing reasons, it is HEREBY ORDERED that: 22 1. 23 24 25 26 Plaintiff’s motions for a hearing, filed September 12, 2011, September 20, 2011, and November 2, 2011, are DENIED; and 2. Plaintiff’s motion for the appointment of counsel is DENIED, without prejudice. IT IS SO ORDERED. Dated: cm411 November 3, 2011 /s/ Barbara A. McAuliffe UNITED STATES MAGISTRATE JUDGE 27 28 2

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