(PC) Valenzuela v. Santiesteban ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARIO A. VALENZUELA, Case No. 1:20-cv-01093-NONE-BAM (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION TO APPOINT COUNSEL 13 v. (ECF No. 25) 14 SANTIESTEBAN, et al., 15 Defendants. 16 17 Plaintiff Mario A. Valenzuela (“Plaintiff”) is a state prisoner proceeding pro se and in 18 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds 19 against Defendants Santiesteban, Rodriguez, and Alejo for excessive force in violation of the 20 Eighth Amendment and against Defendant Perez for failure to protect in violation of the Eighth 21 Amendment, arising from the incident on June 22, 2019. This case is currently set for a video 22 settlement conference before Magistrate Judge Boone on March 25, 2021 at 10:00 a.m. (ECF No. 23 24.) 24 Currently before the Court is Plaintiff’s motion requesting appointment of counsel, filed 25 February 4, 2021. (ECF No. 25.) Plaintiff states that he has a mental illness, is a participant of 26 the mental health program at his institution, and has required special education in the past at 27 school. Plaintiff states that he is illiterate of the law and due to COVID-19 it is difficult to get 28 access to the law library. Plaintiff explains that he has been found mentally incompetent to stand 1 trial in 2017 and referred to the state hospital as well. (Id.) Defendants have not had the 2 opportunity to respond to the motion, but the Court finds a response unnecessary. The motion is 3 deemed submitted. Local Rule 230(l). 4 Plaintiff is informed that he does not have a constitutional right to appointed counsel in 5 this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on other 6 grounds, 154 F.3d 952, 954 n.1 (9th Cir. 1998), and the Court cannot require an attorney to 7 represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. U.S. Dist. Court for the S. Dist. 8 of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the Court may 9 request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 10 1525. 11 Without a reasonable method of securing and compensating counsel, the Court will seek 12 volunteer counsel only in the most serious and exceptional cases. In determining whether 13 “exceptional circumstances exist, a district court must evaluate both the likelihood of success on 14 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 15 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 16 The Court has considered Plaintiff’s request, though he does not provide any basis for such 17 request, and does not find the required exceptional circumstances. Even if it is assumed that 18 Plaintiff is not well versed in the law and that he has made serious allegations which, if proved, 19 would entitle him to relief, his case is not exceptional. This Court is faced with similar cases filed 20 by prisoners, with limited education and suffering from mental illnesses, who are proceeding pro 21 se almost daily. These prisoners also must conduct legal research and prosecute claims without 22 the assistance of counsel. Many of them also represent themselves at settlement conferences to 23 resolve their cases. 24 Furthermore, based on the record in this case, the Court finds that Plaintiff has 25 demonstrated that he is able to clearly articulate his claims and prosecute this action. See Miller 26 v. McDaniel, 124 F. App’x 488, 490 (9th Cir. 2005) (holding that an inmate plaintiff with mental 27 health problems was not entitled to appointment of counsel because the plaintiff demonstrated an 28 ability to articulate his claims pro se). 1 Accordingly, Plaintiff’s motion for appointment of counsel, (ECF No. 25), is HEREBY 2 DENIED without prejudice. 3 IT IS SO ORDERED. 4 5 Dated: February 9, 2021 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28