Windham v. Marin et al

Filing 103

ORDER Denying 102 Motion to Appoint Counsel signed by Magistrate Judge Barbara A. McAuliffe on 04/06/2017. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CHARLES W. WINDHAM,

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Plaintiff,
v.
M. MARIN, et al.,

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Defendants.

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Case No.: 1:14-cv-01636-DAD-BAM (PC)
ORDER DENYING PLAINTIFF’S MOTION FOR
APPOINTMENT OF COUNSEL
(ECF No. 102)

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I.

Background

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Plaintiff Charles W. Windham (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff’s

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Eighth Amendment claims of excessive force against Defendants M. Marin, D. Uribe, W. Rasley, J

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Contreras, A. Capano, R. Rubio, and Doe #1, and for deliberate indifference to serious medical needs

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against Defendants C. Navarro, V. Morales, M. Marin, and S. Shiver.

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On April 6, 2015, Plaintiff filed a declaration regarding allegations of harassment at the

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institution where he was housed. Plaintiff asserted that he could not proceed any further without

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intervention. He therefore requested that the Court investigate his allegations, appoint voluntary

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counsel, hold court hearings, or dismiss this action so that Plaintiff could appeal. (ECF Nos. 18, 19.)

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On April 9, 2015, the Court denied the request for appointment of counsel, finding that the matter did

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not present exceptional circumstances. (ECF No. 21.)
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On April 3, 2017, Plaintiff filed the instant motion requesting the appointment of counsel.
(ECF No. 102.)

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II.

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As Plaintiff was previously informed, he does not have a constitutional right to appointed

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counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), reversed in part on

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other grounds, 154 F.3d 952, 954 n.1 (9th Cir. 1998), and the court cannot require an attorney to

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represent 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, 109 S. Ct. 1814, 1816 (1989). However, in certain

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exceptional circumstances the court may request the voluntary assistance of counsel pursuant to

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Legal Standard

section 1915(e)(1). Rand, 113 F.3d at 1525.
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, a district court must evaluate both the likelihood of success on the

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

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

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III.

Discussion

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Plaintiff requests the appointment of counsel to assist him in conducting cross-examinations of

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Defendants and their agents, witnesses, and counsel. In support of his request, Plaintiff contends that

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his case is factually complex, his ability to investigate is limited due to his incarceration, his case

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requires expert witnesses, he is indigent and lacks legal training and access to legal materials, his case

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is legally complex, and his case is meritorious.

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The Court has considered Plaintiff’s renewed motion for the appointment of counsel, but again

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does not find the required exceptional circumstances. As previously indicated, this Court is faced with

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similar cases involving claims of excessive force and deliberate indifference to serious medical needs

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filed by prisoners proceeding in forma pauperis almost daily. These prisoners also must conduct legal

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research and prosecute medical claims without the assistance of counsel. There is no indication that

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Plaintiff is unable to conduct discovery or legal research to assist him in this matter or that he is unable

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to articulate his claims.
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Furthermore, at this stage in the proceedings, the Court cannot make a determination that

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Plaintiff is likely to succeed on the merits. Although the Court has determined Plaintiff has stated

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some claims which may proceed in litigation, it has not determined that those claim have a likelihood

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of being ultimately successful.

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For the foregoing reasons, Plaintiff’s motion for the appointment of counsel is HEREBY

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DENIED without prejudice. Plaintiff again is reminded that, as necessary and appropriate, he may

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seek extensions of time for relevant case deadlines. Fed. R. Civ. P. 6(b)(1).

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IT IS SO ORDERED.
Dated:

/s/ Barbara

April 6, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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