Martinez v. Davey

Filing 18

ORDER Denying 16 Motion to Appoint Counsel signed by Magistrate Judge Barbara A. McAuliffe on 07/14/2017. (Flores, E)

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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,

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Case No. 1:16-cv-01655-BAM (PC)
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

v.
(ECF No. 16)
D. DAVEY,

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Defendant.

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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 appointment of counsel, filed July 13, 2017. (ECF No. 16.)
Plaintiff states that he is without funds to pay costs or for experts, and he has limited

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education, experience, and cannot read or write English very well. (Id.)
Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v.

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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).
The Court has considered Plaintiff’s motion for the appointment of counsel, but does not

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find the required exceptional circumstances. Even if it is assumed that Plaintiff is not well versed

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in the law and that he has made serious allegations which, if proved, would entitle him to relief,

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his case is not exceptional. This Court is faced with similar cases filed by prisoners proceeding

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

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prosecute claims 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. Plaintiff’s amended complaint has not been filed, and

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thus the case does not yet proceed on any cognizable claims. 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 for the appointment of counsel (ECF No. 16)
is DENIED, without prejudice.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

July 14, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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