(PC) Gonzalez v. Wise et al
Filing
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ORDER DENYING 30 Motion to Appoint Counsel signed by Magistrate Judge Barbara A. McAuliffe on 10/23/2024. (Lawrence, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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MICHAEL HERNANDEZ GONZALEZ,
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Plaintiff,
Case No. 1:23-cv-01501-KES-BAM (PC)
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
v.
(ECF No. 30)
WISE, et al.,
Defendants.
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Plaintiff Michael Hernandez Gonzalez (“Plaintiff”) is a state prisoner appearing pro se
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and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On September 4,
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2024, the Court screened the first amended complaint and issued findings and recommendations
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that this action be dismissed, with prejudice, for failure to state a cognizable claim upon which
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relief may be granted. (ECF No. 27.) The findings and recommendations, and Plaintiff’s
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objections, are pending before the assigned District Judge. (ECF Nos. 27–29.)
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Currently before the Court is Plaintiff’s motion for appointment of counsel, filed October
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21, 2024. (ECF No. 30.) Plaintiff states that he has tested to be at a fifth grade level and has
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limited knowledge of how to navigate the legal system. Plaintiff is receiving medications for
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medical and mental health issues, including PTSD, making it very difficult for him to concentrate
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and properly pursue his civil complaint. Plaintiff further requests that the Court consider: factual
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complexity requiring expert testimony; Plaintiff’s ability to investigate; conflicting testimony;
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Plaintiff’s ability to present his claim due to his indigency; legal and medical complexity; merits
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of his lawsuit he can prove with counsel; and that Plaintiff’s demand for a jury trial. Plaintiff
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further argues that Court-appointed counsel will restore the public’s faith that if law enforcement
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betrays the public trust and abuse their oath of office, the courts will see that justice is delivered.
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(Id.)
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Plaintiff is informed that he does not have a constitutional right to appointed counsel in
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this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on other
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grounds, 154 F.3d 952, 954 n.1 (9th Cir. 1998), and the court cannot require an attorney to
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represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. U.S. Dist. Court for the S. Dist.
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of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the court may
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request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at
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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, 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, but does not find the required exceptional
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circumstances. Even if it is assumed that Plaintiff 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 filed
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almost daily by prisoners with limited education, serious medical and mental health conditions,
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and limited financial resources. These plaintiffs must also litigate their cases without the
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assistance of counsel.
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Furthermore, at this stage in the proceedings, the Court cannot make a determination that
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Plaintiff is likely to succeed on the merits. The Court screened Plaintiff’s first amended
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complaint and did not find that it stated any cognizable claims. The Court’s findings and
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recommendations to dismiss this action for failure to state a claim are currently pending before
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the District Judge, and if adopted, will terminate this action. Finally, based on a review of the
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record in this case, the Court does not find that Plaintiff cannot adequately articulate his claims.
Accordingly, Plaintiff’s motion to appoint counsel, (ECF No. 30), is HEREBY DENIED,
without prejudice.
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IT IS SO ORDERED.
Dated:
/s/ Barbara
October 23, 2024
A. McAuliffe
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UNITED STATES MAGISTRATE JUDGE
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