Holguin v. Wicks

Filing 57

ORDER Denying 56 Amended Motion to Appoint Counsel, signed by Magistrate Judge Barbara A. McAuliffe on 2/5/18. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PABLO HOLGUIN,

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Plaintiff,

Case No. 1:16-cv-00346-DAD-BAM (PC)
ORDER DENYING AMENDED MOTION TO
APPOINT COUNSEL

v.
(ECF No. 56)
R. WICKS,
Defendant.

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Plaintiff Pablo Holguin (“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. This action proceeds on

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Plaintiff’s Fourteenth Amendment due process claim against Defendant Wicks based on the

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alleged denial of Plaintiff’s right to call an identified witness in his defense at his prison

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disciplinary hearing.

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Currently before the Court is Plaintiff’s amended motion to appoint counsel, filed

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February 2, 2018. (ECF No. 56.) As in his original motion, Plaintiff requests appointment of

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counsel due to the complexity of the case, the attorney general’s unlimited legal resources, and

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Plaintiff’s limitations as an incarcerated pro se litigant. Plaintiff argues that his access to the

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prison law library is irregular and infrequent at best, and the library contains only four legal

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research computers and two photo copiers. In addition, Plaintiff states that he is concerned about

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his ability to protect his legal and constitutional rights during his upcoming deposition and all

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future proceedings, including trial. (Id.)

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As Plaintiff was previously informed, Plaintiff does not have a constitutional right to

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

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part on other grounds, 154 F.3d 952, 954 n.1 (9th Cir. 1998), and the court cannot require an
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attorney to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. U.S. Dist. Court for

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the S. Dist. of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances

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the court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand,

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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).
The Court has considered Plaintiff’s amended 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 filed by prisoners

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proceeding pro se and in forma pauperis almost daily. These prisoners also must conduct legal

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research, prosecute claims, and provide depositions 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 found that Plaintiff has stated

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a cognizable claim against Defendant Wicks, the fact that Plaintiff has passed this low bar has not

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yet shown the Court that he is likely to succeed on the merits. Also, based on a review of the

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limited record in this case, the Court does not find that Plaintiff cannot adequately articulate his

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claims.

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For the foregoing reasons, Plaintiff’s motion to appoint counsel (ECF No. 51) is DENIED,
without prejudice.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

February 5, 2018

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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