McClain v. Gonzales et al

Filing 83

ORDER Denying 82 Motion to Appoint Counsel signed by Magistrate Judge Jennifer L. Thurston on 09/02/2011. (Flores, E)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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NAKIA MCCLAIN,

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Case No. 1:07-cv-00945 JLT (PC)

Plaintiff,

ORDER DENYING PLAINTIFF’S MOTION
FOR THE APPOINTMENT OF COUNSEL

vs.
(Doc. 82)

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L. GONZALES, et al.,
Defendants.
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On September 1, 2011, Plaintiff filed a motion for appointment of counsel. Plaintiff is advised

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in this regard that there is no constitutional right to appointed counsel in a § 1983 action. See Rand v.

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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997). However, in certain exceptional circumstances, a court

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may request voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Palmer v. Valdez, 560

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F.3d 965, 970 (9th Cir. 2009). In determining whether “exceptional circumstances exist, a district court

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must evaluate both the likelihood of success on the merits [and] the ability of the [plaintiff] to articulate

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his claims pro se in light of the complexity of the legal issues involved.” Id. (quoting Weygandt v. Look,

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718 F.2d 952, 954 (9th Cir. 1983)). Neither of these considerations is dispositive and instead must be

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viewed together. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986).

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In the present case, the Court does not find the required exceptional circumstances to appoint

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counsel. First, while Plaintiff has produced sufficient evidence to escape summary judgment on some
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of his claims, the Court cannot say at this time whether Plaintiff has a strong likelihood of succeeding

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on the merits of his claims. Second, Plaintiff argues that up to this point he has relied heavily on the aid

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of jailhouse prisoners to litigate this case; that he has a low level of education; and that he is receiving

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mental health treatment. (See Doc. 82 at 2-3.) Nevertheless, the Court is not convinced that Plaintiff

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is unable to adequately articulate his claims in light of their complexity. Plaintiff’s claims are narrow,

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involving two claims of excessive force and retaliation against two defendants. This Court is faced with

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similar cases almost daily. Without a reasonable method of securing and compensating counsel, the

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Court will seek volunteer counsel only in the most serious, complex, and exceptional of cases.

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Accordingly, for the reasons set forth above, IT IS HEREBY ORDERED that Plaintiff’s
September 1, 2011 motion for the appointment of counsel (Doc. 82 ) is DENIED.

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IT IS SO ORDERED.

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Dated: September 2, 2011
9j7khi

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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