Bettencourt v. Parks et al

Filing 78

ORDER DENYING 77 Motion for Appointment of Counsel, signed by Magistrate Judge Barbara A. McAuliffe on 6/25/2021. (Rivera, O)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GARY RAY BETTENCOURT,

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Plaintiff,

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ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

v.

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Case No. 1:16-cv-00150-DAD-BAM (PC)

PARKER, et al.,

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(ECF No. 77)
Defendants.

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Plaintiff Gary Ray Bettencourt (“Plaintiff”) is a state prisoner proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on

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Plaintiff’s claims of deliberate indifference in violation of the Eighth Amendment against

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Defendant Crooks for pulling two teeth that did not need to be pulled, and against Defendants

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Parker and Guzman for filing down six healthy teeth with a dental tool used for drilling cavities.

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Currently before the Court is Plaintiff’s motion for appointment of counsel, filed June 24,

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2021. (ECF No. 70.) Although Defendants have not yet had the opportunity to file a response,

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the Court finds a response unnecessary. The motion is deemed submitted. Local Rule 230(l).

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In his motion, Plaintiff states that he is not a lawyer and this case is in need of

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appointment of counsel to protect Plaintiff’s interests. (ECF No. 70.) Plaintiff argues that

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appointment of counsel is necessary to articulate the seriousness and complexities of this case.

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Plaintiff further presents arguments going to the merits of Defendants’ pending motion to compel,

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which the Court declines to address at this time.

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Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v.
Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on other grounds, 154 F.3d 952, 954
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n.1 (9th Cir. 1998), and the court cannot require an attorney to represent plaintiff pursuant to 28

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U.S.C. § 1915(e)(1). Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296, 298

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(1989). However, in certain exceptional circumstances the court may request the voluntary

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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, 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 request, but does not find the required exceptional

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circumstances. Even if it is assumed that Plaintiff is not well versed in the law and that he has

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made serious allegations which, if proved, would entitle him to relief, his case is not exceptional.

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This Court is faced with similar cases filed by prisoners who are proceeding pro se and with

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limited education in the law daily. These litigants also must conduct legal research, answer

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discovery requests, and litigate their cases 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. Though Plaintiff is proceeding on cognizable claims,

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this does not mean that Plaintiff will succeed on his constitutional claims. Finally, based on a

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review of the record in this case, the Court finds that Plaintiff can adequately articulate his claims.

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Based on the foregoing, Plaintiff’s motion to appoint counsel, (ECF No. 77), is HEREBY
DENIED, without prejudice.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

June 25, 2021

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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