Holmes v. Jaramillo et al

Filing 20

ORDER DENYING 19 Motion to Appoint Counsel signed by Magistrate Judge Jennifer L. Thurston on 3/5/2013. (Sant Agata, S)

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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,
Defendant.

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Case No.: 1:12-cv-01759 JLT (PC)
ORDER DENYING PLAINTIFF’S MOTION FOR
APPOINTMENT OF COUNSEL
(Doc. 19)

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Kevin Holmes (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis with a

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civil rights action pursuant to 42 U.S.C. § 1983. On November 26, 2012, the Court screened

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Plaintiff’s First Amended Complaint and found Plaintiff stated a cognizable claim, and authorized

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service. (Doc. 15).

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On March 1, 2013, Plaintiff filed his second motion for the appointment of counsel. (Doc. 19).

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Plaintiff is reminded that he does not have a constitutional right to counsel in this action. Rand v.

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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997). Further, the Court cannot require an attorney to

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represent him pursuant to 28 U.S.C. § 1915. Mallard v. U.S. District Court for the So. Dist. of Iowa,

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490 U.S. 296, 298 (1989). Nevertheless, in “exceptional circumstances,” the Court has discretion to

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request the voluntary assistance of counsel. Rand, 113 F.3d at 1525.

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Without a reasonable method of securing and compensating counsel, the Court seeks volunteer
counsel only in the most serious and exceptional cases. To determine whether “exceptional
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circumstances exist, the district court must evaluate both the likelihood of success of the merits [and]

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the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the legal issues

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involved.” Rand, 113 F.3d at 1525 (internal quotation marks and citations omitted).

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Here, the Court does not find the required exceptional circumstances. Even if it is assumed

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Plaintiff is not well-versed in the law and has made serious allegations which, if proved, would entitle

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him to relief, his case is not exceptional. To the contrary, this Court is faced with similar cases almost

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daily. Further, at this early state in the proceeding, the Court is unable to make a determination that he

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is likely to succeed on the merits. Although Plaintiff alleges he has difficulty with reading and

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writing, he has shown he is able to respond to the Court’s orders, meet deadlines set by the Court, and

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articulate facts to support his claims. There is no evidence Plaintiff will be unable to continue to do so

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in preparation for and at trial.

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Accordingly, IT IS HEREBY ORDERED: Plaintiff’s motion for the appointment of counsel
(Doc. 19) is DENIED WITHOUT PREJUDICE.

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IT IS SO ORDERED.
Dated:

March 5, 2013

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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