Martinez v. Davey

Filing 80

ORDER DENYING 78 Motion for Appointment of Counsel, signed by Magistrate Judge Jennifer L. Thurston on 05/03/2021. (Maldonado, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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1:16-cv-01658-JLT (PC)

RICARDO MARTINEZ,
Plaintiff,

ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

v.
D. DAVEY, et al.,

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(Doc. 78)
Defendant.

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Plaintiff has filed numerous motions seeking the appointment of counsel, (see Docs. 18,

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30 37, 49), which this Court denied. (See Docs. 19, 31, 38, 50). On June 24, 2019, this Court

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appointed Chijioke O. Ikonte for the limited purpose of investigating the claim and drafting and

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filing a fifth amended complaint. (Doc. 51.) On December 6, 2019, Mr. Ikonte filed a Notice of

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Futility of Filing a Fifth Amended Complaint, which states that he and Plaintiff agreed a fifth

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amendment complaint is unnecessary. Id.

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Plaintiff has filed another motion for appointment of counsel. (Doc. 78.) He again

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describes the case as “complex” and states: “Trial in this case will likely involv[e] conflicting

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testimony, and counsel would better enable Plaintiff to present evidence and cross examine

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witnesses.” Id.

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As this Court has stated repeatedly, 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), and the
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Court cannot require an attorney to represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1).

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Mallard v. U.S. Dist. Ct. for the S. Dist. of Iowa, 490 U.S. 296, 298 (1989). The Court may

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request the voluntary assistance of counsel under section 1915(e)(1). Rand, 113 F.3d at 1525.

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However, 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, 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 complexity

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of the legal issues involved. Id.
The Court again does not find the required exceptional circumstances. Even assuming that

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

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

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almost daily. At this stage in the proceedings, the Court cannot determine that Plaintiff is likely to

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succeed on the merits; the Court shall review of Plaintiff’s Fourth Amended Complaint in due

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course. Moreover, based on a review of the record, the Court finds that Plaintiff remains able to

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articulate his claims adequately and advance this litigation.
For the foregoing reasons, the Court shall not entertain any further motions for

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appointment of counsel absent an exceptional change of circumstances. Accordingly, this Court

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DENIES WITHOUT PREJUDICE Plaintiff’s motion for the appointment of counsel. (Doc.

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78.)

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IT IS SO ORDERED.
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Dated:

May 3, 2021

_ /s/ Jennifer L. Thurston
CHIEF UNITED STATES MAGISTRATE JUDGE

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