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Valencia v. Gipson

United States District Court, E.D. California

April 14, 2015

ABEL VALENCIA, Plaintiff,
v.
CONNIE GIPSON, et al., Defendants.

ORDER DENYING PLAINTIFF'S MOTION FOR APPOINTMENT OF COUNSEL AND REQUEST FOR DEPOSITION BY WRITTEN QUESTIONS [ECF No. 60]

STANLEY A. BOONE, Magistrate Judge.

Plaintiff Abel Valencia is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

On April 13, 2015, Plaintiff filed a motion for the appointment of counsel and request that Defendants conduct his deposition by way of written questions in lieu of video conference.

I.

DISCUSSION

I. Motion for Appointment of Counsel

In the present motion for appointment of counsel, Plaintiff contends that is in need of counsel in order to effectively respond to questions at his own deposition.

There is no constitutional right to appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require any attorney to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525.

Without a reasonable method of securing and compensating counsel, the court will seek volunteer counsel only in the most serious and exceptional cases. In determining whether "exceptional circumstances exist, the district court must evaluate both the likelihood of success on 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 quotation marks and citations omitted).

In the present case, the Court does find that neither the interests of justice nor exceptional circumstances warrant appointment of counsel at this time. LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). Plaintiff is proceeding against Defendants Johnson, Ruiz, Smith, Garcia and Mayo for due process violations relating to the validation and the security housing unit placement of Plaintiff, and against Defendant Ruiz for retaliation in searching Plaintiff's cell after Plaintiff denied any safety concerns regarding his celling placement and exercised his right to remain silent, and Plaintiff has demonstrated an ability to articulate the factual and legal bases of his claims with sufficient clarity and to litigate his claim on his own behalf. Based on the information present before the Court, it is clear that Plaintiff has the competence necessary to pursue his case. Without more, this Court cannot conclude that there are "exceptional circumstance" which would warrant the appointment of counsel in this case.

While a pro se litigant may be better served with the assistance of counsel, so long as a pro se litigant, such as Plaintiff in this instance, is able to "articulate his claims against the relative complexity of the matter, " the "exceptional circumstances" which might require the appointment of counsel do not exist. Rand v. Rowland, 113 F.3d at 1525 (finding no abuse of discretion under 28 U.S.C. § 1915(e) when district court denied appointment of counsel despite fact that pro se prisoner "may well have fared better-particularly in the realm of discovery and the securing of expert testimony.") Accordingly, Plaintiff motion for appointment of counsel is DENIED, without prejudice.

II. Request for Deposition by Written Questions

Plaintiff requests that the Court order his deposition be taken by way of written question in lieu of video conference. Plaintiff further requests that if the Court denies his request for written questioning, Defendants be ordered to provide Plaintiff with a tape recorder during the deposition.

Pursuant to this Court's September 16, 2014, discovery and scheduling order, "Defendant may depose Plaintiff and any other witness confined in a prison upon condition that, at least fourteen (14) days before such a deposition, Defendant serves all parties with the notice required by Federal Rule of Civil Procedure 30(b)(1). Pursuant to Federal Rule of Civil Procedure 30(b)(4), the parties may take any deposition under this section by video conference without a further motion or order of the Court." (ECF No. 37, at ¶ 3.) Plaintiff does not provide any legal or factual basis for the Court to overrule the ...


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