McMaster v. Yates, et al

Filing 60

ORDER Denying 39 Motion to Appoint Counsel signed by District Judge Frank R. Zapata on 08/23/2010. (Flores, E)

(PC) McMaster v. Yates, et al

Doc. 60

1 2 3 4 5 6 7 8 9 10 11 12 D o c to r Thomas, et al., 13 D e fe n d a n ts . 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 P e n d in g before the Court is Plaintiff's motion for appointment of counsel. There is n o constitutional right to appointment of counsel in a civil case. See Hedges v. Resolution T r u s t Corp., 32 F.3d 1360, 1363 (9th Cir.1994); Ivey v. Board of Regents of University of A la s k a , 673 F.2d 266 (9th Cir. 1982); Randall v. Wyrick, 642 F.2d 304 (8th Cir. 1981); see a ls o Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986). As to civil cases, the only ge n e ra l statutory authority pertaining to the appointment of counsel simply states that a "c o u rt may request an attorney to represent any person unable to afford counsel." 28 U.S.C. § 1 9 1 5 (e )(1 ). However, this statute does not authorize courts to require counsel to represent s u c h litigants, but only to request representation on a pro bono basis. See Mallard V. U.S. D is t. Court, 490 U.S. 296, 305-05. An appointment of counsel may be designated under § 1 9 1 5 (e )(1 ) only in "exceptional circumstances." Wilborn v. Escaleron, 789 F.2d 1328, 1 3 3 1 (9th Cir. 1986). A finding of exceptional circumstances requires an evaluation of both " th e likelihood of success on the merits and the ability of the petitioner to articulate his vs. D a n a McMaster, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) N o . CV 1-04-6453-FRZ ORDER IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF CALIFORNIA

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c la im s pro se in light of the complexity of the legal issues involved." Weygandt v. Look, 718 F .2 d 952, 954 (9th Cir. 1983). Neither of these factors is dispositive and both must be viewed to ge th e r before reaching a decision of request of counsel under §1915(e)(1). See id. A re vie w of the record shows that Plaintiff has not demonstrated a likelihood of success on the m e rits at this stage of the litigation. In addition, upon review of the pleadings Plaintiff has a lre a d y filed in this case, Plaintiff appears capable of articulating his claims before the Court. Accordingly, this case does not present "exceptional circumstances" requiring the a p p o i n t m e n t of counsel. Plaintiff's motion for the appointment of counsel (Doc. 39) is de nie d. D A T E D this 23 rd day of August, 2010.

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