(PC) Reeves v. Dougherty et al

Filing 25

ORDER DENYING 24 Motion to Appoint Counsel; ADOPTING 18 Findings and Recommendations Regarding Dismissal of Action for Failure to State a Claim, signed by District Judge Dale A. Drozd on 1/8/2021. CASE CLOSED. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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EMMANUEL REEVES,

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Plaintiff,

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No. 1:20-cv-00487-NONE-BAM (PC)

v.

ORDER DENYING MOTION TO APPOINT
COUNSEL

DOUGHERTY, et al.,
(Doc. No. 24)

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Defendants.

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ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS REGARDING
DISMISSAL OF ACTION FOR FAILURE TO
STATE A CLAIM

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(Doc. No. 18)

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Plaintiff Emmanuel Reeves is a state prisoner proceeding pro se and in forma pauperis in

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this civil rights action pursuant to 42 U.S.C. § 1983.

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On August 26, 2020, the assigned magistrate judge screened the first amended complaint

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and issued findings and recommendations recommending that this action be dismissed based on

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plaintiff’s failure to state a cognizable claim upon which relief may be granted. (Doc. No. 18.)

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Following the granting of two extensions of time, on October 5, 2020, plaintiff timely filed

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objections to the findings and recommendations, together with a motion to appoint counsel.

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(Doc. Nos. 23, 24.)

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With respect to plaintiff’s request for counsel, plaintiff is informed that he does not have a

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constitutional right to appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525

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(9th Cir. 1997), rev’d in part on other grounds, 154 F.3d 952, 954 n.1 (9th Cir. 1998), 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. Court for the S. Dist. of Iowa, 490 U.S. 296, 298 (1989). However, in

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certain exceptional circumstances the court may request the voluntary assistance of counsel

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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
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).

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The court has considered plaintiff’s request for the appointment of counsel, but does not

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find the required exceptional circumstances. Plaintiff argues that he is participating in the Mental

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Health Delivery System at the Enhanced Outpatient Program level of care, his Test of Adult

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Basic Education reading grade point level is 5.9, and he therefore requires special accommodation

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to achieve effective communication. (Doc. No. 24.) Plaintiff further states that due to the

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COVID-19 pandemic he does not have access to the law library, is on quarantine, and is up for

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transfer. (Id.)

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Even if it is assumed that Plaintiff is not well versed in the law and that he has made

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serious allegations which, if proved, would entitle him to relief, his case is not otherwise

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exceptional. This Court is faced with similar cases filed by prisoners receiving mental health

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treatment, with limited education and legal resources, proceeding pro se almost daily and no

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resources are available for the court to secure counsel for all those in such circumstances.

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Furthermore, it cannot be said that plaintiff is likely to succeed on the merits of his claims.

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This is particularly the case here where it has been found that plaintiff has failed to state a

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cognizable claim in either his original or first amended complaint.

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Plaintiff’s objections to the magistrate judge’s findings and recommendations are largely

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identical to the motion for legal representation and do not provide any basis for overturning the

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findings and recommendations. (Doc. No. 23.)

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a

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de novo review of this case. Having carefully reviewed the entire file, including plaintiff’s

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objections, the court finds the findings and recommendations to be supported by the record and

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by proper analysis. Moreover, as suggested by the findings and recommendation in

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recommending dismissal with prejudice, despite being provided with relevant pleading and legal

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standards, plaintiff was unable to cure the deficiencies noted in his original complaint. (Doc. No.

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18 at 8.) Therefore, the granting of further leave to amend would be futile.

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Accordingly,

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1. Plaintiff’s motion to appoint counsel, (Doc. No. 24), is denied;

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2. The findings and recommendations issued on August 26, 2020, (Doc. No. 18), are

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adopted in full;
3. This action is dismissed, with prejudice, due to plaintiff’s failure to state a cognizable

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claim upon which relief may be granted; and
4. The Clerk of the Court is directed to close this case.
IT IS SO ORDERED.
Dated:

January 8, 2021
UNITED STATES DISTRICT JUDGE

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