Recino v. Unknown

Filing 38

ORDER DENYING Plaintiff's Second 36 Motion to Appoint Counsel, signed by Magistrate Judge Barbara A. McAuliffe on 9/12/16. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT R. RECINO,

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Plaintiff,
v.

Case No. 1:15-cv-00362-LJO-BAM (PC)
ORDER DENYING PLAINTIFF’S SECOND
MOTION TO APPOINT COUNSEL
(ECF No. 36)

UNKNOWN,
Defendant.

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Plaintiff Robert R. Recino (“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 currently proceeds on

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Plaintiff’s third amended complaint against the two unknown correctional officer defendants for

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allegedly failing to intercede as Plaintiff was beaten by other inmates, and for delaying in

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obtaining medical treatment for him after the beating, in violation of the Eighth Amendment.

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Currently before the Court is Plaintiff’s second motion seeking the appointment of

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counsel, with a declaration in support. (ECF No. 36.) Plaintiff states that he cannot afford a

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lawyer, that his incarceration limits his ability to litigate his case, and that the case is complex and

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he is a first-time litigant. He further states that he is physically and mentally handicapped, such

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that he cannot proceed without representation, and that he requires counsel to assist in his

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investigation to determine the identity of the unnamed defendants in this case.
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As previously explained, Plaintiff does not have a constitutional right to appointed counsel

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in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot

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require an attorney to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United

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States District Court for the Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816

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(1989). However, in certain exceptional circumstances the Court may request the voluntary

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assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. Without a

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reasonable method of securing and compensating counsel, the Court will seek volunteer counsel

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only in the most serious and exceptional cases. In determining whether “exceptional

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circumstances exist, the district court must evaluate both the likelihood of success on the merits

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

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

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

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also not sufficient to make this case exceptional; this court is faced with similar cases by inmate

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plaintiffs almost daily. Further, at this early stage, the court cannot find that Plaintiff is likely to

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succeed on the merits. Id. The Court has also granted Plaintiff ample time to conduct an

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investigation into locating the identity of the unnamed defendants, and if he faces any specific

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issues, he may seek an appropriate extension of time upon a showing of good case. The Court

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notes that thus far Plaintiff’s filings and arguments are understandable, despite his claimed

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limitations.

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For these reasons, Plaintiff’s second motion for the appointment of counsel (ECF No. 36)
is HEREBY DENIED, without prejudice.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

September 12, 2016

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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