(PC)Hagan v. Recarey

• Court: District Court, E.D. California
• Decided: January 2, 2025
• Docket: 1:22-cv-00562
• Status: Unknown

Opinion

3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 12 KEVIN HAGAN, Case No. 1:22-cv-00562-JLT-EPG (PC) 13 Plaintiff, ORDER DENYING PLAINTIFF’S RENEWED MOTION FOR APPOINTMENT OF PRO 14 v. BONO COUNSEL

15 RAUL RECAREY, et al., (ECF No. 70) 16 Defendants. 17 18 Plaintiff Kevin Hagan is a state prisoner proceeding pro se in this civil rights action filed 19 pursuant to 42 U.S.C. § 1983. Before the Court is Plaintiff’s renewed motion for the appointment 20 of pro bono counsel. (ECF No. 70). 21 The Court denied a similar motion by Plaintiff approximately one month ago on 22 November 21, 2024. (See ECF Nos. 68, 69). Plaintiff’s current motion does not set for any 23 changed circumstances or reasons to reconsider that order. As the Court previously informed 24 Plaintiff, he does not have a constitutional right to appointed counsel in this action, Rand v. 25 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds, 154 F.3d 952 26 (9th Cir. 1998), and the Court cannot require an attorney to represent Plaintiff pursuant to 28 27 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa, 28 490 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. enn enn een een nn EE NE OE IIE OE

1 Without a reasonable method of securing and compensating counsel, the Court will seek 2 | volunteer counsel only in the most serious and exceptional cases. In determining whether 3 | “exceptional circumstances exist, a district court must evaluate both the likelihood of success on 4 | the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 5 | complexity of the legal issues involved.” Jd. (citation and internal quotation marks omitted). 6 Plaintiff's current motion argues that he is entitled to counsel, but his cited authority! 7 | applies to habeas corpus proceedings. See 28 U.S.C. § 2254(d)(1) (providing circumstances under 8 | which an application for writ of habeas corpus may be granted for an individual in custody 9 | pursuant to State court judgment and regarding claims adjudicated on the merits in State court 10 || proceedings); People v. Duvall, 9 Cal.4th 464, 474 (1995) (observing that on a petition for 11 | habeas corpus, petitioner should include copies of “reasonably available documentary evidence” 12 | to state facts on which relief is sought) (citations omitted); In re Bower, 38 Cal.3d 865, 872 13 | (1985) (discussing petitioner’s burden of stating a prima facie case on petition for habeas corpus). 14 | However, once again, there is no right to counsel in this case brought pursuant to 42 U.S.C. § 15 | 1983. See Rand, 113 F.3d at 1525 (“There is no constitutional right to appointed counsel in a § 16 | 1983 action.”) (citation omitted). 17 Accordingly, Plaintiff's renewed motion for appointment of counsel will be denied. 18 For these reasons, IT IS ORDERED that Plaintiff's motion for appointment of pro bono 19 | counsel (ECF No. 70) is DENIED without prejudice. 20 1 IT IS SO ORDERED. *2 | Dated: __ December 31, 2024 [Jee hey — 23 UNITED STATES MAGISTRATE JUDGE 24 25 26 ——__———_. ' Plaintiff cites to King v. Ryan at “638 F.3d 1235 (9th Cir. 2011),” but this citation does not exist. Plaintiff 27 may have been referring to Kemp v. Ryan, 638 F.3d 1245 (9th Cir. 2011), however, that case concerns habeas corpus proceedings, and in particular relevance here, the Sixth Amendment right to counsel in 28 | criminal proceedings. ? Plaintiffs motion does not provide the full citation to People v. Duvall, but the Court assumes that Plaintiff is referring to the 1995 California Supreme Court case.