(PC) Townsend v. Hemela ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 REBIO RONNIE TOWNSEND, Case No. 1:19-cv-01054-BAM (PC) 12 Plaintiff, ORDER DENYING MOTION TO APPOINT COUNSEL 13 v. (ECF No. 6) 14 HEMELA, et al., ORDER DENYING MISCELLANEOUS MOTION 15 Defendants. (ECF No. 7) 16 17 18 Plaintiff Rebio Ronnie Townsend (“Plaintiff”) is a civil detainee proceeding pro se and in 19 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff’s complaint has 20 not yet been screened. Currently before the Court are Plaintiff’s motion to appoint counsel, filed 21 August 29, 2019, and a miscellaneous motion filed September 11, 2019. (ECF Nos. 6, 7.) 22 I. Motion to Appoint Counsel 23 In his motion to appoint counsel, Plaintiff states only that he would like to have a federal 24 public defender. (ECF No. 6.) 25 Unlike in criminal proceedings where a federal public defender might be appointed, 26 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 27 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on other grounds, 154 F.3d 952, 954 n.1 (9th 28 Cir. 1998), and the court cannot require an attorney to represent plaintiff pursuant to 28 U.S.C. § 1 1915(e)(1). Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296, 298 (1989). 2 However, in certain exceptional circumstances the court may request the voluntary assistance of 3 counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. 4 Without a reasonable method of securing and compensating counsel, the Court will seek 5 volunteer counsel only in the most serious and exceptional cases. In determining whether 6 “exceptional circumstances exist, a district court must evaluate both the likelihood of success on 7 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 8 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 9 The Court has considered Plaintiff’s request, but does not find the required exceptional 10 circumstances. Even if it is assumed that Plaintiff is not well versed in the law and that he has 11 made serious allegations which, if proved, would entitle him to relief, his case is not exceptional. 12 This Court is faced with similar cases filed by prisoners proceeding pro se and in forma pauperis, 13 who are receiving mental health treatment almost daily. These prisoners also must prosecute 14 claims without the assistance of counsel. 15 Furthermore, at this stage in the proceedings, the Court cannot make a determination that 16 Plaintiff is likely to succeed on the merits. Plaintiff’s complaint has not been screened. Thus, the 17 case does not yet proceed on any cognizable claims. Also, based on a review of the record in this 18 case, the Court does not find that Plaintiff cannot adequately articulate his claims. 19 II. Exhibits 20 With his motion to appoint counsel, Plaintiff has also attached various documents which 21 he states are to show what efforts he has already made to prove his case. Plaintiff does not 22 otherwise explain the significance or relevance of the attached documents. (ECF No. 6.) 23 As explained in the First Informational Order issued on August 2, 2019, the Court will not 24 serve as a repository for the parties’ evidence. (ECF No. 3, p. 3.) Evidence, such as prison or 25 medical records and inmate appeals, need not be submitted until it becomes necessary to do so in 26 connection with a motion for summary judgment, trial, or the Court requests otherwise. Further, 27 pro se plaintiffs need not attach exhibits to the complaint to prove the truth of what is said in the 28 complaint. For the Court’s screening purposes, facts stated in complaints are accepted as true. 1 III. Miscellaneous Motion 2 On September 11, 2019, Plaintiff also filed a document titled “Ex Parte Motion.” (ECF 3 No. 7.) In this filing, Plaintiff allegations regarding his forced medication regimen and certain 4 events beginning in February of 2004 up to the present. However, it is unclear what relief 5 Plaintiff is seeking by way of this motion, or what Plaintiff is asking for the Court to do. 6 To the extent Plaintiff is attempting to correct or add information to his complaint, a 7 miscellaneous motion is not the appropriate method. If Plaintiff wishes to amend his complaint, 8 he may file an amended complaint or motion to amend the complaint pursuant to Federal Rule of 9 Civil Procedure 15. 10 IV. Order 11 Based on the foregoing, Plaintiff’s motion to appoint counsel, (ECF No. 6), is HEREBY 12 DENIED and Plaintiff’s miscellaneous motion, (ECF No. 7), is DENIED as moot. Plaintiff’s 13 complaint will be screened in due course. 14 IT IS SO ORDERED. 15 16 Dated: September 13, 2019 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28