Ricks v. Austria et al

Filing 36

ORDER DENYING Plaintiff's Fourth and Fifth Motions Requesting the Appointment of Counsel Without Prejudice 32 , 34 , signed by Magistrate Judge Barbara A. McAuliffe on 12/5/16. (Hellings, J)

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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,
v.
A. AUSTRIA, et al.,
Defendants.

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1:15-cv-01147-AWI-BAM (PC)
ORDER DENYING PLAINTIFF’S FOURTH
AND FIFTH MOTIONS REQUESTING THE
APPOINTMENT OF COUNSEL, WITHOUT
PREJUDICE
(ECF Nos. 32, 34)

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. Plaintiff initiated this action on

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July 24, 2015. On November 30, 2016, District Judge Anthony Ishii ordered this action to be

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related to Ricks v. Onyeye, et al., 1:15-cv-1148-AWI-BAM, and Ricks v. Levine, et al., 1:15-cv-

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1150-AWI-BAM. This matter was referred to the undersigned pursuant to 28 U.S.C. §

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636(b)(1)(B) and Local Rule 302.

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Currently before the Court are (1) Plaintiff’s fourth motion for the appointment of

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counsel, filed on July 19, 2016 (ECF No. 32), and (2) Plaintiff’s fifth motion for the appointment

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of counsel, filed September 21, 2016 (ECF No. 34). In support of Plaintiff’s motions, he states

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that he is unable to afford counsel; that he has limited access to a law library, legal resources, and

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writing materials; that he is not computer literate; that he has not been able to obtain counsel on

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his own; and that he is physically and mentally disabled, including that he is classified as an

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psychiatric outpatient and as having limited mobility. Plaintiff has also submitted exhibits in

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support of his contentions.
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As Plaintiff has been previously informed, he does not have a constitutional right to

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appointed counsel in this civil action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997),

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and the Court cannot require an attorney to represent him pursuant to 28 U.S.C. § 1915(e)(1).

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Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296, 298, 109

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S. Ct. 1814, 1816 (1989). However, in certain exceptional circumstances the Court may request

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the voluntary assistance of counsel 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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of 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).
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. This Court is

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faced with similar cases almost daily. Further, at this stage in the proceedings, the Court cannot

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find any likelihood of success on the merits. Also, based on a review of the record in this case,

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the court does not find that Plaintiff cannot adequately articulate his claims. Plaintiff’s filings are

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clear and understandable, and he has been able to comply with the Court’s orders. Thus, the

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Court does not find this to be a serious and exceptional case necessitating the appointment of

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counsel at this time.
Plaintiff’s motions discuss a shortage of paper and limited law library access time that

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causes him concern in complying with the Court’s deadlines. He also expresses concerns

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regarding limitations due to his medical conditions. The Court notes that despite Plaintiff’s

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contentions, he has submitted lengthy, handwritten motions citing various legal authorities.

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Furthermore, to the extent that Plaintiff requires additional time to comply with any deadline, he

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may request an extension, supported by good cause and filed before that deadline expires, as

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explained in this Court’s July 29, 2016 discovery and scheduling order.

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In his motion, Plaintiff also requests permission to file exhibits that he contends support

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his claims, and he has provided a list of the exhibits he wishes to file. Plaintiff is reminded that

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the Court cannot serve as a repository for the parties’ evidence. Originals or copies of evidence

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(i.e., prison or medical records, witness affidavits, etc.) should not be submitted until the course

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of litigation brings the evidence into question (for example, on a motion for summary judgment,

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at trial, or when requested by the Court). This request is therefore denied.

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Accordingly, it is HEREBY ORDERED that Plaintiff’s fourth motion for the

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appointment of counsel, filed July 19, 2016 (ECF No. 32), and fifth motion for the appointment

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of counsel, filed September 21, 2016 (ECF No. 34) are DENIED, without prejudice.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

December 5, 2016

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A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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