Barnett v. Norman, et al.
Filing
183
ORDER Denying Motion For Appointment Of Counsel (ECF No. 179 ), signed by Magistrate Judge Barbara A. McAuliffe on 10/19/2012. (Fahrney, E)
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IN THE UNITED STATES DISTRICT COURT FOR THE
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EASTERN DISTRICT OF CALIFORNIA
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TROAS V. BARNETT,
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1:05-cv-01022-BAM (PC)
Plaintiff,
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
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vs.
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DAVID NORMAN, et al,
(ECF No. 179)
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Defendants.
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________________________________/
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On October 18, 2012, plaintiff filed a motion seeking the appointment of counsel.
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Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v.
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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to
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represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court
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for the Southern District of Iowa, 490 U.S. 296, 298, 109 S. Ct. 1814, 1816 (1989). However, in
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certain exceptional circumstances the court may request the voluntary assistance of counsel
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pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525.
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Without a reasonable method of securing and compensating counsel, the court
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will seek volunteer counsel only in the most serious and exceptional cases. In determining
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whether “exceptional circumstances exist, the district court must evaluate both the likelihood of
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success of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of
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the complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted).
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In the present case, the court does not find the required exceptional circumstances.
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Even if it is assumed that plaintiff is not well versed in the law and that he has made serious
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allegations which, if proved, would entitle him to relief, his case is not exceptional. This court is
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faced with similar cases almost daily. Further, this case is set for trial and plaintiff’s arguments
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that counsel is necessary to depose witnesses and conduct legal research are unpersuasive.
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Discovery in this action is closed and the Court will prepare the documents necessary for trial.
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Although plaintiff alleges that he has limited resources, he has already filed motions in limine
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and a motion for the appointment of expert witness, and at this point no further filings are
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required from plaintiff prior to trial. Finally, based on a review of the record in this case, the
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court does not find that plaintiff cannot adequately articulate his claims. Id.
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For the foregoing reasons, plaintiff’s motion for the appointment of counsel is
HEREBY DENIED.
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IT IS SO ORDERED.
Dated:
cm411
October 19, 2012
/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE
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