Guerra v. Kern County Sheriff's Department et al

Filing 58

ORDER denying 47 Motion to Appoint Counsel signed by Magistrate Judge Barbara A. McAuliffe on 4/18/2016. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOAQUIN GUERRA,

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Plaintiff,
v.
KERN COUNTY SHERIFF’S
DEPARTMENT, et al.,

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Defendants.

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1:13-cv-01077-AWI-BAM (PC)
ORDER DENYING PLAINTIFF’S FOURTH
MOTION FOR THE APPOINTMENT OF
COUNSEL, WITHOUT PREJUDICE
(ECF No. 47)

Plaintiff Joaquin Guerra (“Plaintiff”), is a state prisoner proceeding pro se and in forma

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pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on

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Plaintiff’s first amended complaint against Defendants Sweeney and Feely.
Plaintiff has previously filed three motions requesting the appointment of counsel, (ECF

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Nos. 13, 18, 30), each of which were denied without prejudice, (ECF Nos. 14, 19, 31). Currently

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before the Court is Plaintiff’s fourth motion requesting the appointment of counsel. (ECF No.

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47.)

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As Plaintiff previously has been informed, he does not have a constitutional right to

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appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the

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Court cannot require an attorney to represent Plaintiff pursuant to 28 U.S.C. §1915(e)(1).

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Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296, 298, 109

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S.Ct. 1814, 1816 (1989). However, in certain exceptional circumstances the Court may request

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the voluntary assistance of 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

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“exceptional circumstances exist, the district court must evaluate both the likelihood of success

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of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the

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complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted).

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As Plaintiff has previously asserted, he believes he requires the appointment of counsel

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because he is proceeding in forma pauperis, his imprisonment will limit his ability to litigate, the

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issues are complex, he has limited knowledge of the law and limited education, and he is blind in

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one eye/visually impaired. (ECF No. 47, pp. 1-2.) The Court has considered Plaintiff’s moving

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papers and the record in this case, but does not find the requisite exceptional circumstances.

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Even if it is assumed that Plaintiff is not well versed in the law, his case is not exceptional. This

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Court is faced with similar cases almost daily from indigent prisoners. To the extent Plaintiff

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cites his vision issues, Plaintiff previously provided medical evidence indicating that he may use

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a magnifier for reading. (ECF No. 18, p. 3.) If Plaintiff requires additional time to comply with

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relevant deadlines and court orders because of his vision, then he may seek appropriate

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extensions of time. Critically, the record demonstrates that Plaintiff can adequately articulate his

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claims and position in this matter. (ECF Nos. 12, 13, 16, 18, 40.) In fact, Plaintiff was able to

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successfully oppose one of Defendant’s motions for summary judgment. (ECF Nos. 54, 56.)

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Accordingly, Plaintiff’s motion for the appointment of counsel, (ECF No. 47), is

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HEREBY DENIED without prejudice.

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IT IS SO ORDERED.

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Dated:

/s/ Barbara

April 18, 2016

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A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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