United States District Court, E.D. California
ORDER DENYING MOTIONS FOR APPOINTMENT OF COUNSEL, AND
ADDRESSING PLAINTIFF'S ALLEGATIONS OF JUDICIAL BIAS (ECF
NOS. 93, 95.)
S. AUSTIN, UNITED STATES MAGISTRATE JUDGE
RELEVANT PROCEDURAL HISTORY
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.)
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.
March 12, 2018, and March 29, 2018, Plaintiff filed motions
seeking the appointment of counsel. (ECF Nos. 93, 95.)
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.
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).
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.
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.
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.
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.