Brookins v. Hernandez et al

Filing 87

ORDER DENYING 86 Motion to Appoint Counsel signed by Magistrate Judge Stanley A. Boone on 6/24/2020. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BARRY LEE BROOKINS,

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Plaintiff,

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v.
M. HERNANDEZ, et al.,

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Defendants.

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ORDER DENYING PLAINTIFF’S SECOND
MOTION FOR APPOINTMENT OF COUNSEL,
WITHOUT PREJUDICE
[ECF No. 86]

action pursuant to 42 U.S.C. § 1983.
Currently before the Court is Plaintiff’s second motion for appointment of counsel, filed on

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Case No. 1:17-cv-01675-AWI-SAB (PC)

Plaintiff Barry Lee Brookins is appearing pro se and in forma pauperis in this civil rights

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June 23, 2020.
As Plaintiff is aware, there is no constitutional right to appointed counsel in this action, Rand

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v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require any attorney to

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represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the

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Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances

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the Court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113

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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, 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).

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In the present case, the Court does find that neither the interests of justice nor exceptional

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circumstances warrant appointment of counsel at this time. LaMere v. Risley, 827 F.2d 622, 626 (9th

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Cir. 1987); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). Plaintiff requests the Court

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appoint counsel based upon the following: the complexity of the case; his imprisonment greatly limits

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his ability to litigate; he is unable to afford counsel; he has no legal education; and the appointment of

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counsel would “bring forth all tangible pertinent records in discovery.” Mot. at 1-2. Plaintiff is

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proceeding on an Eighth Amendment claim against Hernandez and Williams. Plaintiff contends

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Hernandez and Williams should not have placed him on CSW after he passed their metal detector searches

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and showed them a medical chrono indicating he could not take off his underwear, bend over, or squat for

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an unclothed body search. The legal issues in this case are not complex, and Plaintiff has adequately

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litigated this case to date. Although the allegations in Plaintiff’s complaint were sufficient to state a

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plausible claim for relief, Plaintiff has not shown a likelihood of success on the merits. Indeed,

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Defendants have filed a motion for summary judgment on the merits of the Plaintiff’s claims, and

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Plaintiff has filed a lengthy opposition. Thus, it is premature to determine that there is a likelihood of

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success on the merits.

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While a pro se litigant may be better served with the assistance of counsel, so long as a pro se

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litigant, such as Plaintiff in this instance, is able to “articulate his claims against the relative

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complexity of the matter,” the “exceptional circumstances” which might require the appointment of

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counsel do not exist. Rand v. Rowland, 113 F.3d at 1525 (finding no abuse of discretion under 28

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U.S.C. § 1915(e) when district court denied appointment of counsel despite fact that pro se prisoner

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“may well have fared better-particularly in the realm of discovery and the securing of expert

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testimony.”) Circumstances common to most prisoners, such as lack of legal education and limited

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law library access, do not establish exceptional circumstances that warrant a request for voluntary
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assistance of counsel. Thus, the Court finds that Plaintiff’s arguments are not exceptional

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circumstances warranting the appointment of counsel at this time. Accordingly, Plaintiff second

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motion for appointment of counsel is DENIED, without prejudice.

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IT IS SO ORDERED.

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Dated:

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June 24, 2020
UNITED STATES MAGISTRATE JUDGE

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