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Michael Piazza v. D.R. Brackett

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


January 25, 2012

MICHAEL PIAZZA,
PLAINTIFF,
v.
D.R. BRACKETT, DEREK PERRY,
DEFENDANTS.

The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge

ORDER DENYING PLAINTIFF'S MOTION FOR APPOINTMENT OF COUNSEL

INTRODUCTION

Plaintiff Michael Piazza is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to Title 42 of the United States Code section 1983. On January 20, 2012, Plaintiff filed a motion seeking the appointment of counsel. (Doc. 7.)*fn1

DISCUSSION

Plaintiff does not have a constitutional right to appointed counsel in this action (Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997)), and the Court cannot require an attorney to represent plaintiff pursuant to Title 28 of the United States Code section 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). In certain exceptional circumstances, however, the Court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997). In determining whether "exceptional circumstances exist, the district court must evaluate both the likelihood of success of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the legal issues involved." Id. (internal quotations & citations omitted).

In his third attempt to compel the appointment of counsel, Plaintiff claims, inter alia, that because Plaintiff is "hearing impaired" under the American With Disabilities Act, coupled with Plaintiff's current incarcerated state, Plaintiff can not adequately participate in hearings associated with Plaintiff's case. (Mot. Appt. Counsel, 2: 12-20, Doc. 10.) The Court is not persuaded. The scope of Plaintiff's hearing impairment is unknown, and Plaintiff has not submitted any evidence to substantiate his status as hearing impaired under the American With Disabilities Act. Even if Plaintiff had presented this Court with such evidence, Plaintiff has not presented this Court with any authority, nor has the Court located any, standing for the proposition that a hearing impairment creates the "exceptional circumstances" required to request voluntary assistance pursuant to Section 1915(e)(1).

In the present case, the Court does not find the required exceptional circumstances. Even if it is assumed that Plaintiff is not well versed in the law and that he has made serious allegations which, if proved, would entitle him to relief, his case is not exceptional. The Court is faced with similar cases almost daily. At this early stage in the proceedings, the Court cannot make a determination that Plaintiff is likely to succeed on the merits. Based on a review of the record in this case, the Court does not find that Plaintiff cannot adequately articulate his claims. Indeed Plaintiff's claims were sufficiently plead to warrant this Court's order directing Defendants to file a responsive pleading to Plaintiff's complaint. (Doc. 9.); See McCoy v. Hedgpeth, No. 11-cv-0653-MMA-WVG, 2011 WL 2182613, *2 (S.D. Cal., June 6, 2011.)

CONCLUSION

For the reasons set forth above, Plaintiff 's motion for the appointment of counsel is hereby DENIED. Any further requests for appointment of counsel will be denied summarily.

IT IS SO ORDERED.


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