Taylor v. Patel et al
Filing
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ORDER DENYING 13 Second Motion to Appoint Counsel, signed by Magistrate Judge Michael J. Seng on 6/4/15. (Marrujo, C)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
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DELTON L. TAYLOR,
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Plaintiff,
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v.
CASE NO. 1:14-cv-01754-MJS (PC)
ORDER DENYING SECOND MOTION
FOR APPOINTMENT OF COUNSEL (ECF
No. 13)
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HARISHKUMAR PATEL, et al.,
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Defendants.
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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
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Defendants Patel and Le were found to be cognizable on May 13, 2015 (ECF No. 10),
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although Defendants have yet to be served.
Before the Court is Plaintiff’s motion for appointment of counsel. (ECF No. 13.)
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Plaintiff contends that “exceptional circumstances” exist: specifically, that the case
involves complex legal issues, will require burdensome discovery, and that his own
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efforts to obtain counsel have proven fruitless.
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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
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other grounds, 154 F.3d 952, 954 n.1 (9th Cir. 1998); White v. McGinnis, 903 F.2d 699,
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700 n.3 (9th Cir. 1990). Nor is there a constitutional right to appointed counsel for § 1983
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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.
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Palmer v. Valdez , 560 F.3d 965, 970 (9th Cir. 2009); Agyeman v. Corrections Corp. of
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America, 390 F.3d 1101, 1103 (9th Cir. 2004). However, without a reasonable method
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of securing and compensating counsel, the Court will seek volunteer counsel only in the
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most serious and exceptional cases. To determine whether exceptional circumstances
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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.
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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)).
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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”);
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Simmons v. Hambly, 14 F. App'x 918, 919 (9th Cir. 2001) (same); Davis v. Yarborough,
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459 F. App'x 601, 602 (9th Cir. 2011) (plaintiff “did not show the ‘exceptional
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circumstances' required to appoint counsel under 28 U.S.C. § 1915(e)(1).”).
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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
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medical indifference claims do not appear to be novel or unduly complex. The facts
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alleged to date appear straightforward. Similarly, litigation of Plaintiff’s claims, which are
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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
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case reflect an appreciation of the legal issues and standards and an ability to express
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them adequately in writing. The Court does not find that Plaintiff cannot adequately
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articulate his claims. Finally, although Plaintiff has indicated that he contacted four law
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firms to request assistance of counsel, he does not say when he contacted them or
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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
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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.
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IT IS SO ORDERED.
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Dated:
June 4, 2015
/s/
Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
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