Polanco v. Department of Corrections et al
Filing
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ORDER DENYING Plaintiff's 9 11 20 Motions for Hearing; ORDER DENYING Plaintiff's 18 Motion to Appoint Counsel signed by Magistrate Judge Barbara A. McAuliffe on 11/3/2011. (Sant Agata, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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RIGOBERTO POLANCO,
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CASE NO. 1:11-cv-01421-BAM PC
Plaintiff,
ORDER DENYING PLAINTIFF’S MOTIONS
FOR HEARING
v.
(ECF No. 9, 11, 20)
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DEPARTMENT OF CORRECTIONS, et al.,
ORDER DENYING PLAINTIFF’S MOTION
FOR APPOINTMENT OF COUNSEL
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Defendants.
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/ (ECF No. 18)
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Plaintiff Rigoberto Polanco (“Plaintiff”) is a state prisoner proceeding pro se and in forma
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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On August 26, 2011, an order
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issued striking the complaint for lack of signature and ordering Plaintiff to file a signed complaint
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within thirty days. On September 12, 2011, Plaintiff filed a motion for a hearing on appointment of
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counsel. On September 16, 2011, Plaintiff filed a signed complaint. A duplicate motion for a
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hearing was filed on September 20, 2011. Plaintiff filed a motion for appointment of counsel on
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October 24, 2011, and a motion for a telephonic court appearance on his motion for appointment of
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counsel on November 2, 2011.
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The court finds that a hearing is not needed at this stage of the litigation. The court is
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required to screen complaints brought by prisoners seeking relief against a governmental entity or
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officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court screens complaints
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in the order in which they are filed and strives to avoid delays whenever possible. However, there
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are hundreds of prisoner civil rights cases presently pending before the Court, and delays are
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inevitable despite the Court’s best efforts. Due to the heavy caseload, Plaintiff’s complaint is still
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awaiting screening. The Court is aware of the pendency of this case and will screen Plaintiff’s
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complaint in due course.
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Plaintiff 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 the court cannot require an attorney to represent
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plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern
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District of Iowa, 490 U.S. 296, 298, 109 S. Ct. 1814, 1816 (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.
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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 of
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the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity
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of the legal issues involved.” Id. (internal quotation marks 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. This court is faced with
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similar cases almost daily. Further, at this early stage in the proceedings, the court cannot make a
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determination that plaintiff is likely to succeed on the merits, and based on a review of the record
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in this case, the court does not find that plaintiff cannot adequately articulate his claims. Id.
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For the foregoing reasons, it is HEREBY ORDERED that:
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1.
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Plaintiff’s motions for a hearing, filed September 12, 2011, September 20, 2011, and
November 2, 2011, are DENIED; and
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Plaintiff’s motion for the appointment of counsel is DENIED, without prejudice.
IT IS SO ORDERED.
Dated:
cm411
November 3, 2011
/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE
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