Miller v. Najera, et. al.

Filing 9

ORDER Denying Motion For Appointment Of Counsel (ECF No. 8 ), signed by Magistrate Judge Michael J. Seng on 9/7/2012. (Fahrney, E)

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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STEVEN R. MILLER,

CASE No.

1:12-cv-01288-AWI-MJS (PC)

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Plaintiff,
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ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

vs.
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(ECF No. 8)
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ALBERT NAJERA, et al.,

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Defendants.
________________________________/
Plaintiff Steven R. Miller, a federal prisoner proceeding pro se filed this civil rights

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action on July 30, 2012 pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown

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Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). (ECF No. 1.) On

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September 6, 2012, he filed a motion to appoint counsel (ECF No. 8), which is now

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before the Court.

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Plaintiff does not have a constitutional right to appointed counsel in this action,

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Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (partially overruled on other

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grounds, 154 F.3d 952, 954 n.1 (9th Cir. 1998)), and the Court cannot require an

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attorney to represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United

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States District Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989).

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However, in certain exceptional circumstances the Court may request the voluntary

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assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525.
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Without a reasonable method of securing and compensating counsel, the Court

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will seek volunteer counsel only in the most serious and exceptional cases. In

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determining whether “exceptional circumstances exist, the district court must evaluate

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both the likelihood of success of the merits [and] the ability of the [plaintiff] to articulate

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his claims pro se in light of the complexity of the legal issues involved.” Id. Neither of

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these factors is dispositive and both must be viewed together before reaching a

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decision on request of counsel under section 1915(d).” Wilborn v. Escalderon, 789

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F.2d 1328, 1331 (9th Cir. 1986); Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009).

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The burden of demonstrating exceptional circumstances is on the Plaintiff. See

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Palmer, 560 F.3d at 970 (plaintiff “has not made the requisite showing of exceptional

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circumstances for the appointment of counsel”); accord, Alvarez v. Jacquez, 415 Fed.

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Appx. 830, 831 (9th Cir. 2011) (plaintiff “failed to show exceptional circumstances”);

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Simmons v. Hambly, 14 Fed. Appx. 918, 919 (9th Cir. 2001) (same); Davis v.

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Yarborough, 459 Fed. Appx. 601, 602 (9th Cir. 2011) (plaintiff “did not show the

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‘exceptional circumstances’ required to appoint counsel under 28 U.S.C. § 1915(e)(1)”).

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In the present case, the Court does not find the required exceptional

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circumstances. Even if it is assumed that Plaintiff is not well versed in the law and that

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he has made serious allegations which, if proved, would entitle him to relief, his case is

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not exceptional. This Court is faced with similar cases almost daily. Further, the Court

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cannot make a determination at this early stage of the litigation that Plaintiff is likely to

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succeed on the merits. The Court has yet to screen the Complaint. The extent to which

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Plaintiff’s Eighth and Fourteenth Amendment claims might present novel or complex

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issues, or require extensive investigation and discovery remains unclear.

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The record in this case including the operative Complaint demonstrates sufficient

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writing ability and legal knowledge to articulate the claim asserted. The Court does not

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find that at present, the 22 year old Plaintiff can not adequately articulate his claims.

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Additionally, it is not apparent on the record that Plaintiff’s ongoing efforts to

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secure counsel will be unsuccessful.1
For the foregoing reasons, Plaintiff’s motion to appoint counsel (ECF No. 8) is

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HEREBY DENIED, without prejudice.

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IT IS SO ORDERED.

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Dated:
12eob4

September 7, 2012

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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See e.g. Thornton v. Schwarzenegger, 2011 W L 90320, *3-4 (S.D. Cal. 2011) (cases cited).

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