Gutierrez v. Gutierrez

Filing 126

ORDER DENYING 125 Plaintiff's Third Motion to Appoint Counsel signed by Magistrate Judge Stanley A. Boone on 7/17/2017. (Jessen, A)

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 12 G. J. GUTIERREZ, Plaintiff, 13 14 v. 15 A. GUTIERREZ, 16 17 Defendant. ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:13-cv-00421-SAB (PC) ORDER DENYING PLAINTIFF’S THIRD MOTION FOR THE APPOINTMENT OF COUNSEL (ECF No. 125) 18 19 Plaintiff G. J. Gutierrez is a state prisoner proceeding pro se and in forma pauperis in this civil 20 rights action pursuant to 42 U.S.C. § 1983. Pursuant to 28 U.S.C. § 636(c), the parties have consented 21 to the jurisdiction of the United States Magistrate Judge. (ECF Nos. 5, 117); Local Rule 302. This 22 action proceeds to a jury trial on Plaintiff’s claims against Defendant A. Gutierrez for excessive force 23 and failure to protect in violation of the Eighth Amendment. 24 Currently before the Court is Plaintiff’s third motion for the appointment of counsel, filed on 25 July 14, 2017. Plaintiff seeks counsel on the grounds that his case is meritorious as it has survived 26 summary judgment, based on his lack of knowledge of the law, the complexity of the issues, and 27 difficulties he anticipates preparing for trial due to lack of legal resources, physical and psychological 28 injuries and limitations, and medication side-effects. (ECF No. 125.) 1 1 As Plaintiff has been previously informed, he does not have a constitutional right to appointed 2 counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot 3 require an attorney to represent Plaintiff pursuant to 28 U.S.C.§ 1915(e)(1), Mallard v. United States 4 District Court for the Southern District of Iowa, 490 U.S. 296, 298, 109 S. Ct. 1814, 1816 (1989). 5 However, in certain exceptional circumstances the court may request the voluntary assistance of 6 counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. 7 Without a reasonable method of securing and compensating counsel, the court will seek 8 volunteer counsel only in the most serious and exceptional cases. In determining whether “exceptional 9 circumstances exist, the district court must evaluate both the likelihood of success of the merits [and] 10 the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the legal issues 11 involved.” Id. (internal quotation marks and citations omitted). 12 Plaintiff’s status as a layperson unskilled in the law, alleged injuries from the incidents at issue 13 here, and medication uses does not make his case exceptional. The issues in this case are not complex, 14 and a review of the record shows that Plaintiff is able to adequately articulate his claims and 15 participate in litigation. Although Plaintiff’s claims proceed to trial, the Court found that the disputed 16 issues are largely credibility-based, and thus there is not a particular likelihood of success on the 17 merits, nor a need for counsel to assist Plaintiff in presenting his claims at trial. Accordingly, Plaintiff’s third motion for appointment of counsel, filed on July 14, 2017 (ECF 18 19 No. 125), is denied, without prejudice. 20 21 IT IS SO ORDERED. 22 Dated: 23 July 17, 2017 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 2

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