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Hazeltine v. Hicks

United States District Court, E.D. California

May 3, 2018

RICK HAZELTINE, Plaintiff,
v.
FRANCES HICKS, et al., Defendants.

          ORDER DENYING MOTIONS FOR APPOINTMENT OF COUNSEL, AND ADDRESSING PLAINTIFF'S ALLEGATIONS OF JUDICIAL BIAS (ECF NOS. 93, 95.)

          GARY S. AUSTIN, UNITED STATES MAGISTRATE JUDGE

         I. RELEVANT PROCEDURAL HISTORY

         Rick Hazeltine (“Plaintiff”) is a civil detainee proceeding pro se and in forma pauperis with this civil rights action filed pursuant to 42 U.S.C. § 1983. This case now proceeds with Plaintiff's First Amended Complaint filed on July 6, 2015, on the following claim: Excessive force in violation of the Fourteenth Amendment against defendants Ian Young, Benjamin Gamez, Rashaun Casper, Julius Oldan, Porfirio Sanchez Negrete, David Avilia, Rickey Smith, and Charles Ho (collectively “Defendants”). (ECF No. 27.)

         This case is scheduled for trial on July 10, 2018, at 8:30 a.m. before the Honorable Dale A. Drozd. A telephonic trial confirmation hearing is scheduled for May 14, 2018, at 1:30 p.m. before the Honorable Dale A. Drozd.

         On March 12, 2018, and March 29, 2018, Plaintiff filed motions seeking the appointment of counsel. (ECF Nos. 93, 95.)

         II. COURT-APPOINTED COUNSEL

         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 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 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 quotation marks and citations omitted).

         In the present case, Plaintiff argues that he is unable to prepare his case for trial because he is being retaliated against at Coalinga State Hospital. Plaintiff asserts that in the past sixty day, he has been subjected to disruptive searches of his bed area, leaving Plaintiff's legal material in disorder. Plaintiff asserts that some of his legal materials have come up missing during the searches. Plaintiff also asserts that he was recently moved to another unit and has been denied access to all of his legal material, which is now in the control of Departmental Police Services. Plaintiff argues that it will take months to reorganize his thousands of pages of documents to even learn what is missing.

         Plaintiff also argues that judicial bias by Magistrate Judge Gary S. Austin has prevented him from fully participating in discovery and preparing his case. Plaintiff complains that Magistrate Judge Austin has denied all of Plaintiff's motions since he was assigned to this case, except for a motion for extension of time.

         These reasons do not make Plaintiff's case exceptional under the law. As stated above, 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. Here, while the court has found that Plaintiff's “allegations are sufficient to state a claim against Defendants Young, Gamez, Casper, Oldan, Negrete, Avilia, Smith and Ho under the Fourteenth Amendment, ” this finding is not a determination that Plaintiff is likely to succeed on the merits, and at this juncture the court does not find a likelihood of success on the merits in this case. (ECF No. 28 at 7:6-9.) Plaintiff's excessive force claims do not appear complex, and based on a review of the record in this case Plaintiff can adequately articulate his claims. Thus, the court does not find the required exceptional circumstances, and Plaintiff's motions for appointment of counsel shall be denied, without prejudice.

         III. ATTORNEY'S FEES

         Plaintiff requests that if his motion for appointment of counsel is denied, he be granted recovery of attorney's fees from Defendants for all of the legal work he has done on this case. This request must be denied. Under 42 U.S.C. § 1988(b), “In any action or proceeding to enforce a provision of section[] 1983 . . ., the court, in its discretion, may allow the prevailing party . . . reasonable attorney's fees . . . .” 42 U.S.C. § 1988(b). However, Plaintiff is not entitled to attorney's fees because he representing himself in this action. Because Plaintiff is not represented by an attorney, he is not entitled to recover attorney's fees if he prevails. Gonzales v. Kangas, 814 F.2d 1411, 1412 (9th Cir. 1987).

         IV. ...


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