Hearns v. Gonzales

Filing 62

ORDER DENYING Plaintiff's 60 Second Motion to Appoint Counsel, signed by Magistrate Judge Michael J. Seng on 12/31/16. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMAR R. HEARNS,

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Plaintiff,
v.
R. GONZALES, et al.,

1:14-cv-01177-DAD-MJS (PC)
ORDER DENYING PLAINTIFF’S SECOND
MOTION FOR APPOINTMENT OF
COUNSEL
(ECF No. 60)

Defendant(s).

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in the civil
rights action filed pursuant to 42 U.S.C. § 1983.

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On November 8, 2016, the undersigned recommended that the District Court

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Judge deny Defendant’s motion for summary judgment and refer the case back to the

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undersigned for an evidentiary hearing to resolve disputed issues of fact. (ECF No. 49.)

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Those findings and recommendations are pending before the District Judge. On

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December 27, 2016, Plaintiff filed a motion seeking the appointment of counsel for the

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purposes of the evidentiary hearing only. (ECF No. 60.)

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In an order dated December 5, 2016, Plaintiff was advised that he does not have

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a constitutional right to appointed counsel in this action and the Court cannot require an

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attorney to represent him. (See ECF No. 57) (citing Rand v. Rowland, 113 F.3d 1520,
1525 (9th Cir. 1997) and Mallard v. United States District Court for the Southern District
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of Iowa, 490 U.S. 296, 298 (1989)). Plaintiff was further advised that the Court would

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only seek the voluntary assistance of counsel in the most serious and exceptional of

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circumstances. (Id.) (citing Rand, 113 F.3d at 1525.) The Court did not find the instant

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case presented the necessary exceptional circumstances. (Id.) It so finds again.

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In determining whether Aexceptional circumstances exist, the district court must

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evaluate both the likelihood of success of the merits [and] the ability of the [plaintiff] to

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articulate his claims pro se in light of the complexity of the legal issues involved.@ Rand,

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113 F.3d at 1525 (internal quotation marks and citations omitted). Even if it is assumed

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that Plaintiff is not well versed in the law and that he has made serious allegations which,

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if proved, would entitle him to relief, his case is not exceptional. This court is faced with

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similar cases almost daily. Further, based on a review of the record in this case, the

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court does not find that Plaintiff cannot adequately articulate his claims on his own. Id.

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For the foregoing reasons, Plaintiff=s second motion for the appointment of
counsel is HEREBY DENIED, without prejudice.

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IT IS SO ORDERED.
Dated:

December 31, 2016

/s/

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UNITED STATES MAGISTRATE JUDGE

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Michael J. Seng

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