Martinez v. Davey et al

Filing 33

ORDER DENYING Plaintiff's 29 Motion to Appoint Counsel, signed by Magistrate Judge Barbara A. McAuliffe on 9/27/2016. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RICARDO MARTINEZ,

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Plaintiff,
v.
D. DAVEY, et al.,
Defendants.

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Case No.: 1:16-cv-00084-LJO-BAM (PC)
ORDER DENYING PLAINTIFF’S MOTION FOR
APPOINTMENT OF COUNSEL
(ECF No. 29)

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Plaintiff Ricardo Martinez (“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. Currently before the Court is

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Plaintiff’s motion for the appointment of counsel, filed September 23, 2016. (ECF No. 29.) Plaintiff

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states that he cannot read or write English very well, but is learning, that he cannot afford counsel, and

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that that the legal issues in this case are particularly complex. He further states that there have been

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several violations of his rights, and he has other civil actions pending.

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Plaintiff does not have a constitutional right to appointed counsel in this civil action, Rand v.

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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require an attorney to represent

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Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern

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District of Iowa, 490 U.S. 296, 298, 109 S. Ct. 1814, 1816 (1989). However, in certain exceptional

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circumstances the Court may request the voluntary assistance of counsel pursuant to section
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1915(e)(1). Rand, 113 F.3d at 1525. Without a reasonable method of securing and compensating

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counsel, the Court will seek volunteer counsel only in the most serious and exceptional cases. In

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determining whether “exceptional circumstances exist, the district court must evaluate both the

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likelihood of success of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in

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light of the complexity of the legal issues involved.” Id. (internal quotation marks and citations

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omitted).

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In the present case, the Court does not find the required exceptional circumstances. Even if it is

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

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proved, would entitle him to relief, his case is not exceptional. This Court is faced with similar cases

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with similar allegations as Plaintiff has presented made by other inmates almost daily. Further, at this

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early stage in the proceedings, the Court cannot find any likelihood of success on the merits. Also,

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based on a review of the record in this case, the court does not find that Plaintiff cannot adequately

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articulate his claims. Id. Although he has not yet stated any cognizable claims, the Court has been able

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to comprehend his pleadings, filings, and motions, which are written in English. Thus, the Court does

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not find this to be a serious and exceptional case necessitating the appointment of counsel at this time.

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Accordingly, it is HEREBY ORDERED that Plaintiff’s motion for the appointment of counsel

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(ECF No. 29) is DENIED, without prejudice.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

September 27, 2016

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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