Windham v. Marin et al

Filing 143

ORDER Denying 142 Motion to Appoint Counsel, signed by Magistrate Judge Barbara A. McAuliffe on 3/28/18. (Gonzalez, R)

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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,

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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 FOR
EVIDENTIARY HEARING
(ECF No. 142)

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 Marin, Uribe, Rasley, Contreras,

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Capano, and Rubio, and for deliberate indifference to serious medical needs against Defendants

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Navarro, Morales, Marin, and Shiver.
On March 22, 2018, the Court issued an order setting an evidentiary hearing on the issue of

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exhaustion of administrative remedies. (ECF No. 141.) On March 23, 2018, Plaintiff filed the instant

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motion requesting the appointment of counsel to represent him at the evidentiary hearing. (ECF No.

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

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state actor witnesses at the hearing, and argues that counsel is required for fundamental fairness,

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timeliness of hearing proceedings, and so as not to waste scarce judicial resources. (Id.)

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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), rev’d in part on other

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

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plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. U.S. Dist. Ct. for the S. Dist. of Iowa, 490

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U.S. 296, 298 (1989). However, in certain exceptional circumstances the court may request the

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voluntary assistance of counsel pursuant to 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 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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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 filed by prisoners proceeding in forma pauperis almost daily. These prisoners also must

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prosecute claims without the assistance of counsel. Based on Plaintiff’s litigation of this action thus

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far, there is no indication that Plaintiff is unable to articulate or diligently prosecute his claims at an

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evidentiary hearing.

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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, (ECF No. 142), is
HEREBY DENIED without prejudice.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

March 28, 2018

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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