Unreported / Non-Citable
Background
Kevin Hagan, a state prisoner proceeding without a lawyer, is pursuing a civil rights action under 42 U.S.C. § 1983 against Raul Recarey and other defendants in the Eastern District of California. On October 28, 2026, he filed his eighth motion asking the court to appoint pro bono counsel, docketed as ECF No. 158. The order lists the earlier requests as ECF Nos. 53, 68, 70, 94, 112, 126 and 139.
The order recounts that Hagan's sixth motion, filed January 8, 2026 (ECF No. 112), was denied the next day (ECF No. 113). His seventh motion was later denied because he did not set out any changed circumstances or reasons to reconsider the January 9 order (ECF Nos. 139, 140). In total, the court identified seven earlier orders denying counsel, at ECF Nos. 54, 69, 71, 102, 113, 132 and 140. The order says nothing about the substance of the underlying claims or the stage of the case, so this summary does not characterize them.
The ruling was issued by a magistrate judge as a two-page order on a motion. It is not a reported decision.
The Court’s Holding
The court denied the renewed motion (ECF No. 158). Its central reason was that Hagan's motion argued he is entitled to counsel but did not allege any change in circumstances that would justify revisiting the seven prior denials. The court found the same deficiency it had found when it denied the seventh motion.
The court also repeated what it had already told Hagan about the law. Citing Rand v. Rowland, it stated that there is no constitutional right to appointed counsel in a § 1983 action. Citing Mallard v. United States District Court for the Southern District of Iowa, it stated that it cannot require an attorney to represent a plaintiff under 28 U.S.C. § 1915(e)(1). The order explains that in certain exceptional circumstances a court may request voluntary assistance of counsel under that section. Because there is no reasonable method of securing and compensating counsel, the court said it will seek volunteer counsel only in the most serious and exceptional cases. Under Wilborn v. Escalderon, a finding of exceptional circumstances requires evaluating both the likelihood of success on the merits and the plaintiff's ability to articulate his claims pro se in light of the complexity of the legal issues.
The order does not apply those two factors to Hagan's case, and it makes no finding about his likelihood of success or the complexity of his claims. The denial rests on the absence of changed circumstances and the absence of any right to counsel. The order does not say whether Hagan may file further motions or warn of consequences if he does.
Key Takeaways
- A prisoner litigating a § 1983 claim has no constitutional right to appointed counsel, and the court cannot compel a lawyer to take the case under 28 U.S.C. § 1915(e)(1).
- A court may request volunteer counsel only in exceptional circumstances, which requires weighing the likelihood of success on the merits and the plaintiff's ability to articulate claims pro se given the complexity of the issues.
- A renewed request that identifies no changed circumstances gives the court no reason to reconsider earlier denials, as the court found here for the eighth motion after seven earlier orders.
- This order does not apply the Wilborn factors to Hagan's claims, so it should not be read as a finding that his case lacks merit or is simple.
- The denial is a ruling on one motion; nothing in the order resolves the underlying claims.
Why It Matters
The order shows how a court handles repeated requests for counsel from an incarcerated plaintiff: it treats appointment as a rare, discretionary accommodation and requires something new before it will look again. The practical burden on a litigant who has been denied is to explain what has changed, such as new circumstances bearing on the Wilborn factors, rather than restating a claimed entitlement to counsel.
Its precedential weight is minimal. It is an unreported, two-page district court order by a magistrate judge, and it applies settled Ninth Circuit and Supreme Court authority without extending it. It is useful mainly as an illustration of the changed-circumstances approach to successive motions. Because the order resolves only the counsel motion, the underlying case stays open and the merits remain undecided as far as this order shows.