Valencia v. Gibson et al
Filing
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ORDER DENYING, Without Prejudice, Plaintiff's Third 63 Motion to Appoint Counsel signed by Magistrate Judge Stanley A. Boone on 5/6/2015. (Sant Agata, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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ABEL VALENCIA,
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Plaintiff,
v.
CONNIE GIPSON, et al.,
Defendants.
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Case No.: 1:12-cv-01446-AWI-SAB (PC)
ORDER DENYING, WITHOUT PREJUDICE,
PLAINTIFF’S THIRD MOTION FOR
APPOINTMENT OF COUNSEL
[ECF No. 63]
Plaintiff Abel Valencia is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.
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Pending before the Court is Plaintiff’s third motion for appointment of counsel. As previously
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advised, there is no constitutional right to appointed counsel in this action, Rand v. Rowland, 113 F.3d
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1520, 1525 (9th Cir. 1997), and the court cannot require any attorney to represent plaintiff pursuant to
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28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa, 490
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U.S. 296, 298 (1989). However, in certain exceptional circumstances the court may request the
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voluntary 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 will seek
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volunteer counsel only in the most serious and exceptional cases. In determining whether
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“exceptional circumstances exist, the district court must evaluate both the likelihood of success on the
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merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the
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legal issues involved.” Id. (internal quotation marks and citations omitted).
In the present case, the Court does not find that neither the interests of justice nor exceptional
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circumstances warrant appointment of counsel at this time. LaMere v. Risley, 827 F.2d 622, 626 (9th
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Cir. 1987); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). The fact that Plaintiff contends he
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is in need of counsel to assist in the discovery phase of this case does not present “extraordinary
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circumstances.” See, e.g., Curtis v. Benda, No. C08-5109 FDB/KLS, 2009 WL 2876172, *1 (W.D.
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Wash. Sept. 8, 2009) (stating, in section 1983 cases, the need for discovery does not qualify the issues
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involved as complex) (citing Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986).) As the
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Ninth Circuit stated in Wilborn,
Although discovery was essential …, the need for such discovery does not necessarily
qualify the issues involved as “complex.” Most actions require development of further
facts during litigation and a pro se litigant will seldom be in a position to investigate
easily the facts necessary to support the case. If all that w[ere] required to establish
successfully the complexity of the relevant issues w[ere] a demonstration of the need
for development of further facts, practically all cases would involve complex legal
issues.
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Wilborn, 789 F.2d at 1331. (fn omitted). The Court further notes that as a matter of law, [p]laintiff’s
lack of legal training and resources are not exceptional circumstances that warrant the appointment of
counsel” where, as here, the case is not complex. Curtis v. Benda, 2009 WL 2876172, *1.
Accordingly, Plaintiff’s third motion for appointment for appointment of counsel is DENIED, without
prejudice.
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IT IS SO ORDERED.
Dated:
May 6, 2015
UNITED STATES MAGISTRATE JUDGE
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