Harris v. Calzetta et al

Filing 38

ORDER Denying 37 Motion to Appoint Counsel, signed by Magistrate Judge Michael J. Seng on 6/1/15. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CASE NO. 1:13-cv-01088-MJS

HENRY EUGENE HARRIS,

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Plaintiff,

ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

v.

(ECF No. 37)

DR. JUAN CALZETTA, et al.,

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Defendants.

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On May 26, 2015, Plaintiff filed his fourth motion seeking the appointment of
counsel.
Plaintiff does not have a constitutional right to appointed counsel in this action,
Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require an

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attorney to represent Plaintiff pursuant to 28 U.S.C. ' 1915(e)(1), Mallard v. United

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States District Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). In

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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. However, without a

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reasonable method of securing and compensating counsel, the Court will seek volunteer

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counsel only in the most serious and exceptional cases.

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In determining whether

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Aexceptional circumstances exist, the district court must evaluate both the likelihood of
success of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in
light of the complexity of the legal issues involved.@ Id. (internal quotation marks and
citations omitted).
Plaintiff’s four motions contend in essence that he is in need of counsel in this
case because: 1) of his disability and medical issues, 2) of his limited ability to litigate

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due to his incarceration, 3) of his limited access to the law library, 4) of the complex

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nature of the case and potentially conflicting evidence, and 5) he cannot afford, and has

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been unable to retain, counsel.

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The Court has advised Plaintiff in each of its previous orders in response to these

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motions that such reasons do not support a finding of exceptional circumstances. Even

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though Plaintiff has made serious allegations which, if proved, could entitle him to relief,

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there is no basis yet for the Court to believe he is likely to succeed on the merits.

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Further, while Plaintiff may not be well versed in the law, his case is not exceptional.

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This Court currently has approximately 1000 such cases, and the overwhelming majority

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of them – indeed, all but a very few – are being pursued by non-lawyer inmates who

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proceed without counsel. Moreover, proceedings to date demonstrate that Plaintiff is

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capable of adequately articulating his claims.

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denied.

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Thus, his motion will once again be

Moreover, Plaintiff is to cease filing such redundant motions.

Given the

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duplicative nature of them and the Court’s enormous caseload, the Court will not

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entertain another motion for appointment of counsel unless it contains new, unique and

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compelling reasons for revisiting the issue. Another repetitive motion for appointment of

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counsel likely will result in sanctions being imposed on Plaintiff, to include monetary

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sanctions, sanctions striking all or part of his claims, or the like. See Thompson v.

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Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986) (holding that in exercising its power to

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control its own docket, the Court may impose sanctions).

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For the foregoing reasons, Plaintiff=s motion for the appointment of counsel is
HEREBY DENIED.

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IT IS SO ORDERED.

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Dated:

June 1, 2015

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE
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