Gallardo v. Sherman et al

Filing 15

ORDER DENYING Plaintiff's 14 Request for an Evidentiary Hearing, and DENYING, without Prejudice, Request for Appointment of Counsel signed by Magistrate Judge Stanley A. Boone on 6/9/2017. (Sant Agata, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANGEL LUIS GALLARDO, 12 13 14 Plaintiff, v. STU SHERMAN, et al., 15 Defendants. 16 17 18 19 20 ) ) ) ) ) ) ) ) ) ) Case No.: 1:17-cv-00390-SAB (PC) ORDER DENYING PLAINTIFF’S REQUEST FOR AN EVIDENTIARY HEARING, AND DENYING, WITHOUT PREJUDICE, REQUEST FOR APPOINTMENT OF COUNSEL [ECF No. 14] Plaintiff Angel Luis Gallardo is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Currently before the Court is Plaintiff’s request for an evidentiary hearing and assistance in litigating this action, filed June 7, 2017. 21 Plaintiff’s request for an evidentiary hearing is misplaced. As Plaintiff was advised in the 22 Court’s May 1, 2017, screening order, the Court is required to screen is required to screen complaints 23 brought by prisoners seeking relief against a governmental entity or officer or employee of a 24 governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if 25 the prisoner has raised claims that are legally “frivolous or malicious,” that “fail[] to state a claim on 26 which relief may be granted,” or that “seek[] monetary relief against a defendant who is immune from 27 such relief.” 28 Plaintiff’s original complaint with leave to amend. Plaintiff filed his first amended complaint on May 28 U.S.C. § 1915(e)(2)(B). On May 1, 2017, the Court screened and dismissed 1 1 25, 2017, which is pending before the Court for screening. There is no entitlement to an evidentiary 2 hearing in order to determine whether Plaintiff’s amended complaint states a cognizable claim for 3 relief, and Plaintiff’s request must be denied. Plaintiff is advised that the Court screens complaints in 4 the order in which they are filed and strives to avoid delays whenever possible. However, there are 5 hundreds of prisoner civil rights cases presently pending before the Court, and delays are inevitable 6 despite the Court’s best efforts. Due to the heavy caseload, Plaintiff’s amended complaint is still 7 awaiting screening. 8 To the extent Plaintiff seeks appointment of counsel, Plaintiff is advised that he does not have 9 a constitutional right to appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th 10 Cir. 1997), and the court cannot require any attorney to represent plaintiff pursuant to 28 U.S.C. § 11 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296, 12 298 (1989). However, in certain exceptional circumstances the court may request the voluntary 13 assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. Without a reasonable method of securing and compensating counsel, the court will seek 14 15 volunteer counsel only in the most serious and exceptional cases. In determining whether 16 “exceptional circumstances exist, the district court must evaluate both the likelihood of success on the 17 merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the 18 legal issues involved.” Id. (internal quotation marks and citations omitted). The test for exceptional circumstances requires the Court to evaluate the Plaintiff’s likelihood 19 20 of success on the merits and the ability of the Plaintiff to articulate his claims pro se in light of the 21 complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 22 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances common to most 23 prisoners, such as lack of legal education and limited law library access, do not establish exceptional 24 circumstances that would warrant a request for voluntary assistance of counsel. In the present case, 25 the Court has yet to screen Plaintiff’s amended complaint and based on a cursory review of the 26 /// 27 /// 28 /// 2 1 complaint, the Court does not find the required exceptional circumstances. Accordingly, Plaintiff’s 2 motion for appointment of counsel will be DENIED without prejudice. 3 4 IT IS SO ORDERED. 5 Dated: 6 June 9, 2017 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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