Gonzalez v. The Fresno Sheriff's Department et al

Filing 55

ORDER DENYING 53 Motion to Appoint Counsel without Prejudice signed by Magistrate Judge Barbara A. McAuliffe on 1/11/2018. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MICHAEL HERNANDEZ GONZALEZ,

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Plaintiff,

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v.
THE FRESNO SHERIFF’S
DEPARTMENT, et al,

Case No. 1:15-cv-01200-BAM (PC)
ORDER DENYING PLAINTIFF’S MOTION
TO APPOINT COUNSEL WITHOUT
PREJUDICE
(ECF No. 53)

Defendants.

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Plaintiff Michael Hernandez Gonzalez (“Plaintiff”), a pretrial detainee at the time of the

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incident and currently a state prisoner proceeding pro se and in forma pauperis, initiated this civil

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rights action pursuant to 42 U.S.C. § 1983 on August 3, 2015.
Currently before the Court is Plaintiff’s motion to appoint counsel, filed January 10, 2018.

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(ECF No. 53.) Plaintiff requests that the Court take into consideration his literacy,

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communication skills, educational level, litigation experience, intellectual capacity, and

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psychological history to grant him appointment of counsel. Plaintiff further argues that the

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Defendants have been uncooperative in responding to his discovery requests, and as a pro se

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litigant, Plaintiff lacks the ability to conduct adequate discovery and present the complex factors

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and legal issues present in this case. In addition, Plaintiff states that he lacks access to the law

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library and does not understand the complex discovery rules. (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
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, but

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

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well versed in the law and that he has made serious allegations which, if proved, would entitle

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him to relief, his case is not exceptional. This Court is faced with similar cases involving claims

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of failure to protect filed by prisoners proceeding pro se almost daily. These prisoners also must

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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 determined Plaintiff has stated

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some claims which may proceed in litigation, it has not determined that those claims have a

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likelihood of ultimately being successful. Also, based on a review of the limited record in this

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case, the Court does not find that Plaintiff cannot adequately articulate his claims.

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To the extent Plaintiff alleges that Defendant Mims has not adequately or timely

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responded to Plaintiff’s discovery requests, Plaintiff is informed that this dispute is properly

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raised in a motion to compel. Plaintiff is reminded that in any motion to compel, he must specify

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what discovery requests are at issue, how Defendant responded, and why Defendant’s objections

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are unjustified. Pursuant to the Court’s June 28, 2017, discovery and scheduling order, the
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deadline for the completion of all discovery, including filing all motions to compel discovery, is

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February 28, 2018. (ECF No. 29.)

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Accordingly, it is HEREBY ORDERED that Plaintiff’s motion to appoint counsel, (ECF
No. 53), is DENIED, without prejudice.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

January 11, 2018

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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