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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JAMAR R. HEARNS, 12 13 14 15 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). 16 17 18 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. 19 On November 8, 2016, the undersigned recommended that the District Court 20 Judge deny Defendant’s motion for summary judgment and refer the case back to the 21 undersigned for an evidentiary hearing to resolve disputed issues of fact. (ECF No. 49.) 22 Those findings and recommendations are pending before the District Judge. On 23 December 27, 2016, Plaintiff filed a motion seeking the appointment of counsel for the 24 purposes of the evidentiary hearing only. (ECF No. 60.) 25 In an order dated December 5, 2016, Plaintiff was advised that he does not have 26 a constitutional right to appointed counsel in this action and the Court cannot require an 27 28 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 1 1 of Iowa, 490 U.S. 296, 298 (1989)). Plaintiff was further advised that the Court would 2 only seek the voluntary assistance of counsel in the most serious and exceptional of 3 circumstances. (Id.) (citing Rand, 113 F.3d at 1525.) The Court did not find the instant 4 case presented the necessary exceptional circumstances. (Id.) It so finds again. 5 In determining whether Aexceptional circumstances exist, the district court must 6 evaluate both the likelihood of success of the merits [and] the ability of the [plaintiff] to 7 articulate his claims pro se in light of the complexity of the legal issues involved.@ Rand, 8 113 F.3d at 1525 (internal quotation marks and citations omitted). Even if it is assumed 9 that Plaintiff is not well versed in the law and that he has made serious allegations which, 10 if proved, would entitle him to relief, his case is not exceptional. This court is faced with 11 similar cases almost daily. Further, based on a review of the record in this case, the 12 court does not find that Plaintiff cannot adequately articulate his claims on his own. Id. 13 14 For the foregoing reasons, Plaintiff=s second motion for the appointment of counsel is HEREBY DENIED, without prejudice. 15 16 17 IT IS SO ORDERED. Dated: December 31, 2016 /s/ 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 Michael J. Seng 2

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