Holmes v. Jaramillo et al

Filing 26

ORDER Denying Plaintiff's 23 Motion to Appoint Counsel and Director-Private Investigator for ADA Disability signed by Magistrate Judge Jennifer L. Thurston on 03/15/2013. (Flores, E)

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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.
JARAMILLO et al.,

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Defendant.

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Case No.: 1:12-cv-01759 - JLT
ORDER DENYING PLAINTIFF’S REQUEST FOR
APPOINTMENT OF COUNSEL AND DIRECTORPRIVATE INVESTIGATOR FOR ADA
DISABILITY
(Doc. 23)

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Plaintiff Kevin Holmes (“Plaintiff”) is a state prisoner proceeding pro se in a civil rights action

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pursuant to 42 U.S.C. § 1983. Pursuant to 28 U.S.C. § 1915, the Court permitted Plaintiff the right to

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proceed in forma pauperis. (Doc. 13.) Now pending before the Court is Plaintiff’s request for the

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appointment of counsel and “director-private investigator for ADA disability,” filed March 13, 2013.

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(Doc. 23.)

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A. Appointment of Counsel.

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As the Court advised Plaintiff in response to his motion for appointment of counsel—filed only

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14 days ago--under 28 U.S.C. § 1915(e)(1), the Court cannot require an attorney to represent plaintiff

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pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern District

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of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). Plaintiff is advised that he does not have a

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constitutional right to appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th

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Cir. 1997). Only in certain exceptional circumstances the court may request the voluntary assistance
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of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. Exceptional circumstances exist

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when there is “the likelihood of success of the merits [and] the [in]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. (internal quotation marks

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and citations omitted).

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As noted in the Court’s order dated March 6, 2013, the Court does not find the required

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exceptional circumstances, at least at this time. Every day the Court is confronted with cases raising

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serious allegations by inmates who are not well-versed in the law, have minimal formal education and

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who must rely upon the assistance of other inmates when drafting pleadings and other case-related

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documents. Unfortunately, though the Court does not discount in any fashion the importance of

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Plaintiff’s case, it simply is not exceptional.

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stage in the proceedings, the Court cannot determine whether Plaintiff is likely to succeed on the

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merits. Based on a review of the record in this case, especially the documents Plaintiff filed in support

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of this motion, the Court finds that Plaintiff has been able to adequately articulate his claims. (Id.)

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Plaintiff’s request for appointment of counsel is DENIED.

Moreover, as noted by the Court before, at this early

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B. Appointment of Director-Private Investigator for ADA Disability.

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28 U.S.C. § 1915 determines the Courts’ authority to grant or deny Plaintiff’s present motion.

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No public funds may be expended on behalf of an indigent litigant where Congress has not authorized

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such expenditure. Strain v. Sandham, No. CIV S-05-0474 GEB GGH P, 2007WL3231712*2 (E.D.Cal.

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2007)(citing Tedder v. Odel, 890 F.2d 210 (9th Cir. 1989). 28 U.S.C. § 1915 does not authorize use of

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public funds for an investigator. See 28 U.S.C. § 1915; Strain, 2007 WL at *2. While the Court notes

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that Title II of the ADA, 42 U.S.C.A. § 12132, applies to inmates within state prisons, Williams v.

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Schwarzenegger, No. 1:09–cv–00131–GSA–PC, 2009 WL 900049 *7 (E.D.Cal. 2009), the Court finds

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no authority from Congress that would permit the Court to appoint a “director-private investigator for

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ADA disability.” See 28 U.S.C. § 1915.

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Here, Plaintiff states he had difficulty reading and writing and cites his appeal decision which

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makes this finding. However, Plaintiff is advised that the Court does not have the authority to make

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the appointment he seeks. Moreover, Plaintiff has failed to demonstrate in any fashion why an

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investigator is needed, what this person would investigate or how this investigation would bear on
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Plaintiff’s case. Plaintiff’s request for appointment of a director-private investigator for ADA

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disability is DENIED.
ORDER

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Based upon the foregoing, Plaintiff’s motion for appointment of counsel an investigator (Doc.
23) is DENIED.

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IT IS SO ORDERED.
Dated:

March 15, 2013

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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