Valdez v Unknown

Filing 42

ORDER signed by District Judge David A. Ezra on 8/24/11 ORDERING that Plaintiff's Motion for leave to proceed in forma pauperis and Plaintiff's MOTION for Appointment of Counsel 38 is DENIED. (Mena-Sanchez, L)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
RICARDO VALDEZ,

)
)
Plaintiff,
)
)
vs.
)
)
CORRECTIONAL OFFICERS
)
WALKER, GUFFEE AND VORON, )
et al., and CSP-SACRAMENTO
)
MEDICAL CLINICIANS
)
)
Defendant.
)
_____________________________ )

No. CIV. S-08-01978 DAE

ORDER DENYING AS MOOT PLAINTIFF’S MOTION FOR LEAVE TO
PROCEED IN FORMA PAUPERIS AND DENYING PLAINTIFF’S MOTION
FOR APPOINTMENT OF COUNSEL
On August 22, 2008, Plaintiff Ricardo Valdez (“Plaintiff”),
proceeding pro se, filed a Complaint pursuant to 42 U.S.C. § 1983. (Doc. # 1.) On
the same day, Plaintiff filed an Application to proceed in forma pauperis. (Doc. #
2.) The Court granted Plaintiff’s in forma pauperis application on January 8, 2009.
(Doc. # 10.) On April 27, 2011, Plaintiff filed the instant Motion (“Motion”) for
Leave to Proceed In Forma Pauperis and for Appointment of Counsel. (“Mot.,”
Doc. # 38.)
Plaintiff’s Motion requests the Court “for an order permitting him to
file this action in forma pauperis without pre-payment of fees and cost or security

thereof . . . .” (Mot. at 1.) Because the Court already granted Plaintiff in forma
pauperis status on January 8, 2009, the Court DENIES AS MOOT his current
Motion for leave to proceed in forma pauperis.
Plaintiff, in his Motion, also requests that the Court appoint him
counsel because of his exceptional circumstances, his likelihood of success on the
merits, his substantial efforts to obtain representation, and his low income. (Mot.
at 2.) Plaintiff argues that he has limited education, reading, and writing skills, that
his access to the law library is limited, and that his claims are complex. (Mot. at 2,
5.) The United States Supreme Court has ruled that district courts lack authority to
require counsel to represent indigent prisoners in § 1983 cases. Mallard v. United
States Dist. Court, 490 U.S. 296, 298 (1989). District courts are granted discretion
to appoint counsel, but this discretion is generally exercised only in “exceptional
circumstances.” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v.
Housewright, 900 F.2d 1332, 1335–36 (9th Cir. 1990); see 28 U.S.C. § 1915(e)(1).
“A finding of exceptional circumstances requires an evaluation of both the
‘likelihood of success on the merits and ability of the plaintiff to articulate his
claims pro se in light of the complexity of the legal issues involved.’ Neither of
these issues is dispositive and both must be viewed together before reaching a
decision.” Terrell, 935 F.2d at 1017 (citations omitted).
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To date, Plaintiff has been able to present his claims against
Defendants in an adequate manner in both the Complaint and Amended Complaint,
and the Court does not find the required exceptional circumstances warranting
appointment of counsel at this time. Plaintiff’s request for appointment of counsel
is therefore DENIED.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, August 24, 2011.

_____________________________
David Alan Ezra
United States District Judge

Valdez v. Walker et al., No. CIV. S-08-01978 DAE; ORDER DENYING AS
MOOT PLAINTIFF’S MOTION FOR LEAVE TO PROCEED IN FORMA
PAUPERIS AND DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF
COUNSEL

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