Holmes v. Jaramillo et al

Filing 16

ORDER Denying 12 Motion to Appoint Counsel, signed by Magistrate Judge Jennifer L. Thurston on 11/27/12. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KEVIN HOLMES,

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Plaintiff,
v.
C/O JARAMILLO, et. al,
Defendants.

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Case No.: 1:12-cv-01759 JLT (PC)
ORDER DENYING MOTION TO APPOINT
COUNSEL
(Doc. 12)

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Plaintiff is a prisoner proceeding pro se in an action pursuant to 42 U.S.C. § 1983. On

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November 21, 2012, Plaintiff filed a motion for appointment of counsel. (Doc. 12) In this motion,

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Plaintiff asserts that he should be appointed counsel because “no reasonable judge or jury would have

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convicted Petitioner.” Id. at 2. However, Plaintiff is not a “petitioner” in this case and he is not

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challenging his underlying conviction but, instead, he raises claims related to an event that occurred on

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February 15, 2012. (Doc. 11 at 4)

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Plaintiff is advised that he does not have a constitutional right to appointed counsel in this

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action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), 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 States District

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Court for the Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in

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certain exceptional circumstances the court may request the voluntary assistance of counsel pursuant

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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 of 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).

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In the present case, the Court does not find the required exceptional circumstances. Even if it

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is assumed that Plaintiff is not well versed in the law and that he has made serious allegations which, if

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proved, would entitle him to relief, his case is not exceptional. This court is faced with similar cases

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almost daily. Moreover, at this early stage, the Court cannot make a determination that Plaintiff is

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likely to succeed on the merits.

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Based on a review of the record in this case, Plaintiff has shown he is able to respond to Court

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orders, meet court deadlines, and adequately articulate arguments to support his claims. Thus, the

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Court finds no reason to believe Plaintiff will be unable to continue to do so in preparation for and at

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trial.
For the foregoing reasons, IT IS HEREBY ORDERED that Plaintiff’s motion for appointment

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of counsel is DENIED, without prejudice.

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IT IS SO ORDERED.

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Dated:

November 27, 2012

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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