(PC) Arena v. Cervantes ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 PETER MICHAEL ARENA, Case No. 1:21-cv-00928-JLT-BAM (PC) 12 Plaintiff, ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL 13 v. (ECF No. 38) 14 CERVANTES, et al., 15 Defendants. 16 17 Plaintiff Peter Michael Arena (“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 Cervantes, Berlanga, Cerda-Jirano, Moreno, and Ceja for excessive force in 20 violation of the Eighth Amendment. 21 Currently before the Court is Plaintiff’s motion for appointment of counsel, filed July 20, 22 2022. (ECF No. 38.) Plaintiff states that due to the complexities of this case and his mental and 23 physical disabilities, he requests appointment of counsel to assist him in moving forward in the 24 conclusion of this matter. Plaintiff suffers from severe bipolar disorder, brain damage, and 25 several physical ailments, which make it extremely difficult to understand the complex laws in 26 federal court. Plaintiff also takes medications which cause severe drowsiness, excessive sleep, 27 and difficulty concentrating. Plaintiff states that he was deemed so mentally incompetent that in 28 order for CDCR to stabilize him, he was placed on involuntary psychotropic medication and has 1 been in a psych service unit since 2007. Plaintiff has sought counsel many times since this suit 2 was filed and has only received one written response. Plaintiff believes that if the Court grants 3 his motion for counsel, this matter can be resolved much faster. Plaintiff has had help up to this 4 point in this case, but that help will no longer be available. Plaintiff has attached exhibits to his 5 motion, including letters seeking representation and medical records demonstrating his 6 involuntary medication. (Id.) 7 Defendants have not yet had an opportunity to respond to Plaintiff’s motion, but the Court 8 finds a response unnecessary. The motion is deemed submitted. Local Rule 230(l). 9 Plaintiff is informed that he does not have a constitutional right to appointed counsel in 10 this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on other 11 grounds, 154 F.3d 952, 954 n.1 (9th Cir. 1998), and the court cannot require an attorney to 12 represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. U.S. Dist. Court for the S. Dist. 13 of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the court may 14 request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 15 1525. 16 Without a reasonable method of securing and compensating counsel, the Court will seek 17 volunteer counsel only in the most serious and exceptional cases. In determining whether 18 “exceptional circumstances exist, a district court must evaluate both the likelihood of success on 19 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 20 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 21 The Court has considered Plaintiff’s request, but does not find the required exceptional 22 circumstances. Even if it is assumed that Plaintiff has made serious allegations which, if proved, 23 would entitle him to relief, his case is not exceptional. This Court is faced with similar cases filed 24 almost daily by prisoners who are suffering from physical or mental health conditions or are 25 taking psychotropic medications. These plaintiffs also must litigate their cases without the 26 assistance of counsel. 27 Furthermore, at this stage in the proceedings, the Court cannot make a determination that 28 Plaintiff is likely to succeed on the merits. Although the Court found that Plaintiff stated some 1 cognizable claims in the complaint, the Court cannot say that those claims have a likelihood of 2 ultimately being successful in the face of a motion or summary judgment or trial. Finally, based 3 on a review of the record in this case, the Court does not find that Plaintiff cannot adequately 4 articulate his claims. 5 Accordingly, Plaintiff’s motion for appointment of counsel, (ECF No. 38), is HEREBY 6 DENIED, without prejudice. 7 IT IS SO ORDERED. 8 9 Dated: July 21, 2022 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28