Reyes v. Flores et al

Filing 79

ORDER Denying 78 Motion to Appoint Counsel signed by Magistrate Judge Jennifer L. Thurston on 07/09/2019. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Case No.: 1:16-cv-00586-JLT (PC)

ABEL P. REYES,

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ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

Plaintiff,

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v.

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FLORES,

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(Doc. #78)
Defendant.

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On June 6, 2017, Plaintiff filed a motion seeking the appointment of counsel. Plaintiff

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does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 113

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

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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 (1989). 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

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volunteer counsel only in the most serious and exceptional cases. In determining whether

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Aexceptional circumstances exist, the district court must evaluate both the likelihood of success of

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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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In the present case, the court does not find the required exceptional circumstances. Even

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if the Court assumes that Plaintiff is not well versed in the law and that he has made serious

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

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faced with similar cases almost daily. Further, at this stage in the proceedings, the court cannot

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determine that Plaintiff is likely to succeed on the merits and based on a review of the record in

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this case, the court does not find that Plaintiff cannot adequately articulate his claims. Id.
Though Plaintiff submitted some mental health records, they do not show that Plaintiff’s

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mental health is deteriorating.1 He has suffered from a mental illness since a very young age,

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and it appears that he has complained of the same concerns raised in his motion for appointment

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of counsel for at least a year. Despite these subjective complaints, his clinician has not modified

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his treatment plan or his medications. Importantly, despite his subjective complaints that have

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existed for more than a year, he has been prosecuting this action successfully including defeating

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a motion for summary judgment. (Docs. 48, 49)
For the foregoing reasons, Plaintiff=s motion for the appointment of counsel is DENIED,

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without prejudice to refiling the motion with evidence from a medical professional opining that
Plaintiff’s mental health is deteriorating and that this deterioration impairs his ability to prepare
for and engage in his trial.
IT IS SO ORDERED.

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Dated:

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July 9, 2019

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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The Court notes that the record for Plaintiff’s most recent mental health evaluation, in May of this year, are
incomplete.
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