Estrada v. Macias et al

Filing 79

ORDER denying 78 Motion to Appoint Counsel signed by Magistrate Judge Stanley A. Boone on 3/3/2017. (Lundstrom, T)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID ESTRADA, 12 13 14 Plaintiff, v. TERESA MACIS, et al., 15 Defendants. 16 17 18 19 20 21 ) ) ) ) ) ) ) ) ) ) Case No.: 1:15-cv-01292-AWI-SAB (PC) ORDER DENYING, WITHOUT PREJUDICE, PLAINTIFF’S THIRD MOTION FOR APPOINTMENT FOR APPOINTMENT OF COUNSEL [ECF No. 78] Plaintiff David Estrada is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Currently before the Court is Plaintiff’s third motion for appointment of counsel, filed March 2, 2017. As Plaintiff was previously advised, there is no constitutional right to appointed counsel in this 22 action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require any 23 attorney to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District 24 Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional 25 circumstances the court may request the voluntary assistance of counsel pursuant to section 26 1915(e)(1). Rand, 113 F.3d at 1525. 27 28 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 1 1 “exceptional circumstances exist, the district court must evaluate both the likelihood of success on the 2 merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the 3 legal issues involved.” Id. (internal quotation marks and citations omitted). In the present case, the Court does find that neither the interests of justice nor exceptional 4 5 circumstances warrant appointment of counsel at this time. LaMere v. Risley, 827 F.2d 622, 626 (9th 6 Cir. 1987); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). Plaintiff is proceeding on a claim 7 of deliberate indifference to a serious medical need and the legal issues present in this action are not 8 complex, and Plaintiff has thoroughly set forth his allegations in the complaint. While a pro se litigant may be better served with the assistance of counsel, so long as a pro se 9 10 litigant, such as Plaintiff in this instance, is able to “articulate his claims against the relative 11 complexity of the matter,” the “exceptional circumstances” which might require the appointment of 12 counsel do not exist. Rand v. Rowland, 113 F.3d at 1525 (finding no abuse of discretion under 28 13 U.S.C. § 1915(e) when district court denied appointment of counsel despite fact that pro se prisoner 14 “may well have fared better-particularly in the realm of discovery and the securing of expert 15 testimony.”) Based on the record in this case, Plaintiff is able to articulate his claims and litigate this 16 action. Circumstances common to most prisoners, such as lack of financial resources, lack of legal 17 education and limited law library access, do not establish exceptional circumstances that would 18 warrant a request for voluntary assistance of counsel. Accordingly, Plaintiff’s third motion for 19 appointment of counsel is DENIED, without prejudice. 20 21 22 IT IS SO ORDERED. 23 Dated: 24 March 3, 2017 UNITED STATES MAGISTRATE JUDGE 25 26 27 28 2

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