Ackley v. Carroll et al

Filing 96

ORDER Denying Motion For Appointment Of Counsel (ECF No. 94 ), signed by Magistrate Judge Barbara A. McAuliffe on 5/9/2012. (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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DONALD J. ACKLEY,

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1:06-cv-00771-AWI-BAM-(PC)

Plaintiff,
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

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vs.

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D. CARROLL, et al.,
(ECF No. 94 )

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Defendants.

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________________________________/

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This action is proceeding against Defendant Wright on Plaintiff’s claim of

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excessive force and against Defendant Carroll for retaliation arising out of the incidents on

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October 14, 2007, and is currently set for trial on June 26, 2012. On May 8, 2012, plaintiff filed

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a motion seeking the appointment of counsel. Plaintiff does not have a constitutional right to

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appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the

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court cannot require an attorney to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1).

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Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296, 298, 109

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S.Ct. 1814, 1816 (1989). However, in certain exceptional circumstances the court may request

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the voluntary assistance of counsel 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. The case

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does not involve complex legal issues and this court is faced with similar cases almost daily.

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Further, at this stage in the proceedings, the court cannot make a determination that plaintiff is

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likely to succeed on the merits, and based on a review of the record in this case, the court does

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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, without prejudice.
IT IS SO ORDERED.
Dated:
cm411

May 9, 2012

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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