Rios v. Tilton, et. al.
Filing
105
ORDER denying 102 Motion to Appoint Counsel signed by Magistrate Judge Kendall J. Newman on 11/01/11. (Plummer, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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RENO FUENTES RIOS,
Plaintiff,
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vs.
J. E. TILTON, et al.,
Defendants.
ORDER
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No. 2:07-cv-0790 WBS KJN P
Plaintiff is a prison inmate proceeding without counsel and in forma pauperis in
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this civil rights action filed pursuant to 42 U.S.C. § 1983. On October 19, 2011, the district
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judge adopted the undersigned’s findings and recommendations that defendants’ motion for
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summary judgment be granted in part and denied in part; on November 1, 2011, the district judge
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denied plaintiff’s motion for reconsideration. This action now proceeds only on plaintiff’s
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retaliation claim against defendant Mayfield. Pending is plaintiff’s fifth request for the
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appointment of counsel.
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The United States Supreme Court has ruled that district courts lack authority to
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require counsel to represent indigent prisoners in Section 1983 cases. Mallard v. United States
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District Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the court may
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request the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v.
Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36
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(9th Cir. 1990). A finding of exceptional circumstances “requires at least an evaluation of the
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likelihood of the plaintiff’s success on the merits and an evaluation of the plaintiff’s ability to
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articulate his claims in light of the complexity of the legal issues involved.” Agyeman v.
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Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004) (citations and internal
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quotations omitted).
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Plaintiff’s previous requests for appointment of counsel were filed on September
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19, 2008, March 16, 2009, August 10, 2009, and July 8, 2010. All requests were denied, on the
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ground that this case did not present the required exceptional circumstances warranting
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appointment of counsel. The court again finds that the required exceptional circumstances are
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not present. Although the remaining claim in this action has survived a motion for summary
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judgment, plaintiff has proven to be a prolific and articulate litigant on his own behalf; it appears,
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at present, that plaintiff will be able to marshal the relevant facts and legal principles in support
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of his retaliation claim for purposes of trial.
Accordingly, IT IS HEREBY ORDERED that plaintiff’s current motion for
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appointment of counsel (Dkt. No. 102), is denied.
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DATED: November 1, 2011
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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE
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rios0790.31thr
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