Harris v. Pimentel, et al.

Filing 22

ORDER Denying Motion For Appointment Of Counsel (ECF No. 20 ), signed by Magistrate Judge Michael J. Seng on 9/23/2014. (Fahrney, E)

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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DARRELL HARRIS,
Plaintiff,

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v.

Case No. 1:13-cv-01354-LJO-MJS (PC)
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(ECF No. 20)

R. PIMENTEL, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in a civil rights

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action pursuant to 42 U.S.C. § 1983. The matter proceeds against Defendant Escamilla on

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the First Amended Complaint’s free exercise, RLUIPA and equal protection claims for

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damages.

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Before the Court is Plaintiff’s motion for appointment of counsel.

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Plaintiff does not have a constitutional right to appointed counsel in this action, Rand

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v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), partially overruled on other grounds, 154

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F.3d 952, 954 n.1 (9th Cir. 1998), and the Court can not require an attorney to represent

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

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Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional

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circumstances the Court may request the voluntary assistance of counsel pursuant to

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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
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seek volunteer counsel only in the most serious and exceptional cases. In determining

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whether “exceptional circumstances exist, the district court must evaluate both the

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likelihood of success of the merits [and] the ability of the [plaintiff] to articulate his or her

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claims pro se in light of the complexity of the legal issues involved.” Id. Neither of these

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factors is dispositive and both must be viewed together before reaching a decision on

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request of counsel under section 1915(d). Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th

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Cir. 1986); Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009).
The burden of demonstrating exceptional circumstances is on the Plaintiff. See

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Palmer, 560 F.3d at 970 (plaintiff “has not made the requisite showing of exceptional

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circumstances for the appointment of counsel”); accord, Alvarez v. Jacquez, 415 F. App’x

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830, 831 (9th Cir. 2011) (plaintiff “failed to show exceptional circumstances”); Simmons v.

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Hambly, 14 F. App’x 918, 919 (9th Cir. 2001) (same); Davis v. Yarborough, 459 F. App’x

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601, 602 (9th Cir. 2011) (plaintiff “did not show the ‘exceptional circumstances’ required to

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appoint counsel under 28 U.S.C. § 1915(e)(1).”).
In the present case, the Court does not find the required exceptional circumstances.

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Even if it is assumed that Plaintiff is not well versed in the law and that he has made

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serious allegations which, if proved, would entitle him to relief, his case is not exceptional.

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This Court is faced with similar cases almost daily. Further, the Court cannot make a

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determination at this early stage of the litigation that Plaintiff is likely to succeed on the

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merits. The free exercise, RLUIPA and equal protection claims in issue do not appear to be

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novel or unduly complex. The facts alleged to date appear straightforward and unlikely to

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involve extensive investigation and discovery.
The papers filed by Plaintiff in this case reflect an appreciation of the legal issues

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and standards and an ability to express same adequately in writing. At present, the Court is

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unable to find that Plaintiff is unable adequately to articulate his claims.
Finally, nothing suggests that Plaintiff has made diligent effort to secure counsel.1

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Plaintiff’s lack of funds alone does not necessarily mean efforts to secure counsel would be

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See e.g. Thornton v. Schwarzenegger, 2011 WL 90320, *3-4 (S.D. Cal. January 11, 2011) (cases cited).

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futile.
For the reasons stated, it is HEREBY ORDERED that Plaintiff’s motion for
appointment of counsel (ECF No. 20) is DENIED, without prejudice.

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IT IS SO ORDERED.
Dated:

September 23, 2014

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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