Ricks v. Kamena et al

Filing 47

ORDER Denying 46 Motion to Appoint Counsel, signed by Magistrate Judge Barbara A. McAuliffe on 4/3/18. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SCOTT K. RICKS,

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Plaintiff,

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ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

v.

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Case No. 1:15-cv-00715-DAD-BAM (PC)

KAMENA, et al.,

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(ECF No. 46)
Defendants.

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Plaintiff Scott K. Ricks (“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 against

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Defendant Kamena for the failure to protect Plaintiff from his cellmate’s attack as he was

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attacked, and for deliberate indifference to Plaintiff’s serious medical need following the attack,

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in violation of the Eighth Amendment.

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Currently before the Court is Plaintiff’s renewed motion for appointment of counsel, filed

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March 30, 2018. (ECF No. 46.) Plaintiff asserts that appointment of counsel is warranted

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because he is unable to afford counsel, while Defendant is represented by the Attorney General of

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California; his imprisonment will limit his ability to litigate; he believes the case is complex and

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he has never litigated a case before; he lacks access to written or printed legal research materials;

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he is no longer housed at the facility where the incident took place; he is severely mentally and

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physically disabled; the case will likely involve conflicting testimony; and he has made repeated
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efforts to obtain a lawyer without success. (Id.)

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As Plaintiff has been 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

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other grounds, 154 F.3d 952, 954 n.1 (9th Cir. 1998), 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. U.S. Dist. Court for the S. Dist.

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of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the court may

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request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at

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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

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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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The Court has considered Plaintiff’s renewed motion for the appointment of counsel,

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including the attached exhibits relating to Plaintiff’s physical and mental disabilities, but does not

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find the required exceptional circumstances. Even if it is assumed that Plaintiff is not well versed

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in the law and that he has made serious allegations which, if proved, would entitle him to relief,

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his case is not exceptional. This Court is faced with similar cases filed by prisoners proceeding

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pro se and in forma pauperis almost daily. These prisoners also must conduct legal research and

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prosecute claims without the assistance of counsel.

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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 found that Plaintiff stated a

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cognizable claim against Defendant Kamena, the fact that Plaintiff has passed this low bar has not

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yet shown the Court that he is likely to succeed on the merits. Although the Court has determined

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Plaintiff has stated some claims which may proceed in litigation, it has not determined that those

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claims have a likelihood of being ultimately successful.

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Finally, based on a review of the limited record in this case and after review of attached
exhibits, the Court does not find that Plaintiff cannot adequately articulate his claims. In fact, the
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record demonstrates that Plaintiff is able to prepare and file documents that clearly set forth his

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contentions and cite to legal authorities, without any apparent assistance. (ECF Nos. 3, 9, 12, 17,

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24, 27, 33, 39, 40, 42, 43, 46.)

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For the foregoing reasons, Plaintiff’s motion to appoint counsel (ECF No. 46) is DENIED,
without prejudice.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

April 3, 2018

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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