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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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G. J. GUTIERREZ,
Plaintiff,

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v.

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A. GUTIERREZ,

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Defendant.

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Case No.: 1:13-cv-00421-SAB (PC)
ORDER DENYING PLAINTIFF’S THIRD
MOTION FOR THE APPOINTMENT OF
COUNSEL
(ECF No. 125)

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Plaintiff G. J. Gutierrez is a state prisoner proceeding pro se and in forma pauperis in this civil

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rights action pursuant to 42 U.S.C. § 1983. Pursuant to 28 U.S.C. § 636(c), the parties have consented

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to the jurisdiction of the United States Magistrate Judge. (ECF Nos. 5, 117); Local Rule 302. This

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action proceeds to a jury trial on Plaintiff’s claims against Defendant A. Gutierrez for excessive force

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and failure to protect in violation of the Eighth Amendment.

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Currently before the Court is Plaintiff’s third motion for the appointment of counsel, filed on

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July 14, 2017. Plaintiff seeks counsel on the grounds that his case is meritorious as it has survived

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summary judgment, based on his lack of knowledge of the law, the complexity of the issues, and

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difficulties he anticipates preparing for trial due to lack of legal resources, physical and psychological

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injuries and limitations, and medication side-effects. (ECF No. 125.)
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As Plaintiff has been previously informed, he does not have a constitutional right to appointed

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counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot

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require an attorney to represent Plaintiff pursuant to 28 U.S.C.§ 1915(e)(1), Mallard v. United States

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

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However, in certain exceptional circumstances the court may request the voluntary assistance of

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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 “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.” Id. (internal quotation marks and citations omitted).

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Plaintiff’s status as a layperson unskilled in the law, alleged injuries from the incidents at issue

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here, and medication uses does not make his case exceptional. The issues in this case are not complex,

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and a review of the record shows that Plaintiff is able to adequately articulate his claims and

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participate in litigation. Although Plaintiff’s claims proceed to trial, the Court found that the disputed

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issues are largely credibility-based, and thus there is not a particular likelihood of success on the

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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

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No. 125), is denied, without prejudice.

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IT IS SO ORDERED.

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Dated:

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July 17, 2017
UNITED STATES MAGISTRATE JUDGE

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