Gallardo v. Sherman et al
Filing
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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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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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ANGEL LUIS GALLARDO,
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Plaintiff,
v.
STU SHERMAN, et al.,
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Defendants.
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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.
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Plaintiff’s request for an evidentiary hearing is misplaced. As Plaintiff was advised in the
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Court’s May 1, 2017, screening order, the Court is required to screen is required to screen complaints
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brought by prisoners seeking relief against a governmental entity or officer or employee of a
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governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if
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the prisoner has raised claims that are legally “frivolous or malicious,” that “fail[] to state a claim on
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which relief may be granted,” or that “seek[] monetary relief against a defendant who is immune from
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such relief.”
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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
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25, 2017, which is pending before the Court for screening. There is no entitlement to an evidentiary
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hearing in order to determine whether Plaintiff’s amended complaint states a cognizable claim for
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relief, and Plaintiff’s request must be denied. Plaintiff is advised that the Court screens complaints in
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the order in which they are filed and strives to avoid delays whenever possible. However, there are
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hundreds of prisoner civil rights cases presently pending before the Court, and delays are inevitable
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despite the Court’s best efforts. Due to the heavy caseload, Plaintiff’s amended complaint is still
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awaiting screening.
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To the extent Plaintiff seeks appointment of counsel, Plaintiff is advised that he does not have
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a constitutional right to appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th
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Cir. 1997), and the court cannot require any attorney to represent plaintiff pursuant to 28 U.S.C. §
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1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296,
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298 (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.
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 on the
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merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the
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legal issues involved.” Id. (internal quotation marks and citations omitted).
The test for exceptional circumstances requires the Court to evaluate the Plaintiff’s likelihood
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of success on 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. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir.
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1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances common to most
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prisoners, such as lack of legal education and limited law library access, do not establish exceptional
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circumstances that would warrant a request for voluntary assistance of counsel. In the present case,
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the Court has yet to screen Plaintiff’s amended complaint and based on a cursory review of the
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complaint, the Court does not find the required exceptional circumstances. Accordingly, Plaintiff’s
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motion for appointment of counsel will be DENIED without prejudice.
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IT IS SO ORDERED.
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Dated:
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June 9, 2017
UNITED STATES MAGISTRATE JUDGE
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