Buchanan v. Santos et al

Filing 76

ORDER Denying Motion For Appointment Of Counsel (# 72 ), signed by Magistrate Judge Gary S. Austin on 7/26/2012. (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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WHITTIER BUCHANAN,

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1:08-cv-01174-AWI-GSA (PC)

Plaintiff,
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

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vs.

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A. SANTOS, et al.,
( #72)

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Defendants.

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________________________________/

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On July 19, 2012, plaintiff filed a motion seeking the appointment of counsel. Plaintiff

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does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 113 F.3d

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1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to represent plaintiff pursuant

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to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern District of

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Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in certain exceptional

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circumstances the court may request the voluntary assistance of counsel pursuant to section

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1915(e)(1). Rand, 113 F.3d at 1525.

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Without a reasonable method of securing and compensating counsel, the court will seek

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volunteer counsel only in the most serious and exceptional cases. In determining whether

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“exceptional circumstances exist, the district court must evaluate both the likelihood of success of

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the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity

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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. Plaintiff

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argues that because he is incarcerated, unable to afford counsel, and has health concerns, his case

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is exceptional. Even if it is assumed that plaintiff is not well versed in the law and that he has

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made serious allegations which, if proved, would entitle him to relief, plaintiff’s described

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disabilities do not make his case exceptional. This court is faced with similar cases almost daily.

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Moreover, this case proceeds on an excessive force claim against only one defendant and does not

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involve complex law. Further, the court does not find it likely that plaintiff will succeed on the

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merits, and based on a review of the record in this case, the court does not find that plaintiff cannot

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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:
220hhe

July 26, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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