Taylor v. Patel et al

Filing 14

ORDER DENYING 13 Second Motion to Appoint Counsel, signed by Magistrate Judge Michael J. Seng on 6/4/15. (Marrujo, C)

1
2
3
4
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

5
6
7

DELTON L. TAYLOR,

8

Plaintiff,

9

v.

CASE NO. 1:14-cv-01754-MJS (PC)
ORDER DENYING SECOND MOTION
FOR APPOINTMENT OF COUNSEL (ECF
No. 13)

10
HARISHKUMAR PATEL, et al.,
11
Defendants.

12
13
14
15
16

Plaintiff, Delton Taylor, is a state prisoner proceeding pro se and in forma
pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. Plaintiff has
consented to Magistrate Judge jurisdiction. Plaintiff’s Eighth Amendment claims against

17
Defendants Patel and Le were found to be cognizable on May 13, 2015 (ECF No. 10),
18
19

although Defendants have yet to be served.
Before the Court is Plaintiff’s motion for appointment of counsel. (ECF No. 13.)

20
21
22

Plaintiff contends that “exceptional circumstances” exist: specifically, that the case
involves complex legal issues, will require burdensome discovery, and that his own

23
efforts to obtain counsel have proven fruitless.
24
25
26
27
28

I.

LEGAL STANDARD
Plaintiff does not have a constitutional right to effective assistance of counsel in

civil cases. Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) partially overruled on

1

other grounds, 154 F.3d 952, 954 n.1 (9th Cir. 1998); White v. McGinnis, 903 F.2d 699,

2

700 n.3 (9th Cir. 1990). Nor is there a constitutional right to appointed counsel for § 1983

3
4

claims, specifically. Campbell v. Burt, 141 F.3d 927, 931 (9th Cir. 1998). The Court
may, in “exceptional circumstances,” appoint counsel for an indigent civil rights litigant.

5
6

Palmer v. Valdez , 560 F.3d 965, 970 (9th Cir. 2009); Agyeman v. Corrections Corp. of

7

America, 390 F.3d 1101, 1103 (9th Cir. 2004). However, without a reasonable method

8

of securing and compensating counsel, the Court will seek volunteer counsel only in the

9

most serious and exceptional cases. To determine whether exceptional circumstances

10
11

exist, the Court evaluates both the likelihood of success on the merits and Plaintiff’s
ability to articulate his claims in light of the complexity of the legal issues involved.

12
13
14
15

Palmer, 560 F.3d at 970. Neither of these factors is dispositive and both must be viewed
together before reaching a decision on request of counsel under section 1915(d). Id., at
970(citing Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).

16
17
18
19

The burden of demonstrating exceptional circumstances is on Plaintiff. See
Palmer, 560 F.3d at 970 (plaintiff “has not made the requisite showing of exceptional
circumstances for the appointment of counsel”); accord, Alvarez v. Jacquez, 415 F.
App'x 830, 831 (9th Cir. 2011) (plaintiff “failed to show exceptional circumstances”);

20
21

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

22

459 F. App'x 601, 602 (9th Cir. 2011) (plaintiff “did not show the ‘exceptional

23

circumstances' required to appoint counsel under 28 U.S.C. § 1915(e)(1).”).

24
25
26
27

II.

APPOINTMENT OF COUNSEL DENIED
Here, Plaintiff has not demonstrated the existence of exceptional circumstances.

At this early stage of the litigation, the Court cannot make a determination that Plaintiff is
likely to succeed on the merits. Despite Plaintiff’s assertions to the contrary, Plaintiff’s

28
2

1

medical indifference claims do not appear to be novel or unduly complex. The facts

2

alleged to date appear straightforward. Similarly, litigation of Plaintiff’s claims, which are

3
4

based on his own treatment history and medical records, would not appear to require
“extensive investigation and discovery,” as Plaintiff argues. Plaintiff’s pleadings in this

5
6

case reflect an appreciation of the legal issues and standards and an ability to express

7

them adequately in writing. The Court does not find that Plaintiff cannot adequately

8

articulate his claims. Finally, although Plaintiff has indicated that he contacted four law

9

firms to request assistance of counsel, he does not say when he contacted them or

10
11

when or if he received a response. His efforts to date do not demonstrate that further
efforts to secure counsel would be futile. See e.g., Thornton v. Schwarzenegger, 2011

12
13
14
15
16

WL 90320, *3–4 (S.D.Cal. 2011) (cases cited).
III.

ORDER
Based on the foregoing, the Court HEREBY ORDERS that Plaintiff’s motion for

appointment of counsel, filed June 3, 2015 (ECF No. 13), be DENIED without prejudice.

17
18

IT IS SO ORDERED.

19
20

Dated:

June 4, 2015

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

21
22
23
24
25
26
27
28
3