Recino v. Unknown

Filing 26

ORDER Denying 24 Motion to Appoint Counsel, signed by Magistrate Judge Barbara A. McAuliffe on 12/29/15. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERTO R. RECINO,

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Plaintiff,

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v.

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UNKNOWN,

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Defendant.

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1:15-cv-00362-LJO-BAM (PC)
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(ECF No. 24)

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Plaintiff Roberto R. Recino (“Plaintiff”) is a state prisoner proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Currently before the

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Court is Plaintiff’s motion requesting the Court issue an order appointing him counsel. (ECF No.

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24.) Plaintiff states that he cannot afford a lawyer, that his incarceration limits his ability to

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litigate his case, that the case is complex and he is a first-time litigant, and that he has made

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efforts to obtain a lawyer and has been unsuccessful.

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Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v.

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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), 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

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the Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in

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certain exceptional circumstances the Court may request the voluntary assistance of counsel

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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, the district court must evaluate both the likelihood of success

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

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

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In the present case, the court does not find the required exceptional circumstances. Even

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if it is assumed that Plaintiff is not well versed in the law and that he has made serious

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allegations which, if proved, would entitle him to relief, his case is not exceptional. His

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incarceration alone is also not sufficient to make this case exceptional. Regarding the nature of

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Plaintiff’s case, this court is faced with similar cases almost daily of petitioners alleging failure

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to protect and deliberate indifference to serious medical needs in violation of the Eighth

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Amendment to the United States Constitution. Further, at this early stage in the proceedings, the

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court cannot make a determination that Plaintiff is likely to succeed on the merits. Id.

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For these reasons, Plaintiff’s motion for the appointment of counsel (ECF No. 24) is
HEREBY DENIED, without prejudice.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

December 29, 2015

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A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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