Baker v. Yates

Filing 46

ORDER Denying Motions (ECF No. 44 , 45 ), signed by Magistrate Judge Stanley A Boone on 2/15/2013. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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HARVEY CURTIS BAKER,

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Plaintiff,
v.

Case No. 1:12-cv-00126-LJO-SAB
ORDER DENYING MOTIONS
(ECF NO. 44, 45)

JAMES A. YATES,

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Defendant.

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Plaintiff Harvey Curtis Baker (“Plaintiff”) is a state prisoner proceeding pro se and in this

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civil rights action under 42 U.S.C. § 1983 against Defendant James A. Yates (“Defendant”).

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Currently before the Court are two motions filed by Plaintiff. On February 13, 2013, Plaintiff

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filed a motion requesting appointment of counsel. (ECF No. 44.) The same day, Plaintiff filed a

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motion requesting that all future hearings be conducted by “court-call.” (ECF No. 45.)

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I.

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DISCUSSION

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A.

Motion For Appointment Of Counsel

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Plaintiff’s first motion requests appointment of counsel.

Plaintiff does not have a

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constitutional right to the appointment of counsel in this action. Palmer v. Valdez, 560 F.3d 965,

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970 (9th Cir. 2009); Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). The Court may

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request the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1), but it will do so
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only if exceptional circumstances exist. Palmer, 560 F.3d at 970; Wilborn v. Escalderon, 789

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F.2d 1328, 1331 (9th Cir. 1986). In making this determination, the Court must evaluate the

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likelihood of success on the merits and the ability of Plaintiff to articulate his claims pro se in

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light of the complexity of the legal issues involved. Palmer, 560 F.3d at 970 (citation and

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quotation marks omitted); Wilborn, 789 F.2d at 1331. Neither consideration is dispositive and

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they must be viewed together. Palmer, 560 F.3d at 970 (citation and quotation marks omitted);

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Wilborn, 789 F.2d at 1331.

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In the present case, the Court does not find the required exceptional circumstances exist at

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this time. Even if it is assumed that Plaintiff is not well versed in the law and that he has made

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serious allegations which, if proved, would entitle him to relief, his case is not exceptional. The

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Court is faced with similar cases almost daily.

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appointment of counsel will be denied.

Accordingly, Plaintiff’s request for the

Motion For “Court Call” Hearings

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B.

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Plaintiff’s second motion requests that the Court order that all future hearings be

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conducted via “court-call.” The Court interprets this to mean that Plaintiff requests all future

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hearings to be conducted via telephonic appearance.

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It is this Court’s practice to adjudicate all motions in cases involving pro se prisoner

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plaintiffs without hearings, unless otherwise ordered by the Court.1 See Local Rule 230(l). In an

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appropriate case, the Court will conduct hearings and allow Plaintiff to appear by telephone.

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However, this determination will be made on a case-by-case basis and the Court will not issue an

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advance order setting telephonic hearings for all future proceedings. Accordingly, Plaintiff’s

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motion will be denied.

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For example, the Court issued its Findings and Recommendations on Defendant’s motion to
dismiss without a hearing. Neither side presented oral argument and the Court only considered
the papers filed by the parties.
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II.

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CONCLUSION AND ORDER

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Based on the foregoing, it is HEREBY ORDERED that Plaintiff’s February 13, 2013

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motion for appointment of counsel (ECF No. 44) and Plaintiff’s February 13, 2013 motion for

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“court call” hearings (ECF No. 45) are DENIED.

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IT IS SO ORDERED.

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Dated:
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February 15, 2013

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DEAC_Signature-END:

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_

UNITED STATES MAGISTRATE JUDGE
i1eed4

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