Hernandez v. Burnes et al
Filing
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ORDER DENYING 36 Motion to Appoint Counsel signed by Magistrate Judge Jennifer L. Thurston on 6/16/2011. (Jessen, A)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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ARMANDO HERNANEZ, JR.,
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Case No. 1:09-cv-00381 JLT (PC)
Plaintiff,
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vs.
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ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
J. BURNES, et al.,
(Doc. 36)
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Defendants.
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_________________________________/
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On June 14, 2011, Plaintiff filed a motion seeking the appointment of counsel. Plaintiff is
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advised that he does not have a constitutional right to appointed counsel in this action, Rand v.
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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and that the Court cannot require an attorney to
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represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for
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the Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional
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circumstances, the Court may request the voluntary assistance of counsel pursuant to section
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1915(e)(1). Rand, 113 F.3d at 1525. In determining whether “exceptional circumstances exist, a
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district court must evaluate both the likelihood of success on the merits [and] the ability of the
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[plaintiff] to articulate his claims pro se in light of the complexity of the legal issues involved.” Id.
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(internal quotations and citations omitted).
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In the present case, the Court does not find the required exceptional circumstances. Even if
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it is assumed that Plaintiff is not well-versed in the law and that he has made serious allegations,
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which, if proved, would entitle him to relief, his case is not exceptional. Nor is it overly complex.
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This case involves a single type of claim (excessive force under the Eighth Amendment) against two
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defendants. 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 complex of cases. Further, at this early stage in the
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proceedings, the Court cannot make a determination that Plaintiff is likely to succeed on the merits.
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And, based on a review of the record in this case, the Court does not find that Plaintiff is unable to
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adequately articulate his claims.
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Accordingly, for all the reasons set forth above, it is HEREBY ORDERED that Plaintiff’s
June 14, 2011 motion for appointment of counsel (Doc. 36) is DENIED.
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IT IS SO ORDERED.
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Dated: June 16, 2011
9j7khi
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
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