Carter v. Fernandez et al

Filing 140

ORDER DENYING 134 Motion to Appoint Counsel, signed by Magistrate Judge Sheila K. Oberto on 3/20/2012. (Marrujo, C)

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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11 IVAN RAY CARTER, JR.,

1:08-cv-01841-SKO (PC)

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ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

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Plaintiff,
vs.

(Doc. 134)
14 A. FERNANDEZ, et al.,
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Defendants.

16 ________________________________/
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On March 12, 2012, Plaintiff filed a motion seeking the appointment of counsel. Plaintiff

18 does not have a constitutional right to the appointment of counsel in this action. Palmer v.
19 Valdez, 560 F.3d 965, 970 (9th Cir. 2009); Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir.
20 1981). The Court may request the voluntary assistance of counsel pursuant to 28 U.S.C. §
21 1915(e)(1), but it will do so only if exceptional circumstances exist. Palmer, 560 F.3d at 970;
22 Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1981). In making this determination, the
23 Court must evaluate the likelihood of success on the merits and the ability of Plaintiff to
24 articulate his claims pro se in light of the complexity of the legal issues involved. Palmer, 560
25 F.3d at 970 (citation and quotation marks omitted); Wilborn, 789 F.2d at 1331. Neither
26 consideration is dispositive and they must be viewed together. Palmer, 560 F.3d at 970 (citation
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In the present case, the Court does not find the required exceptional circumstances. Even

2 if it is assumed that Plaintiff is not well versed in the law and that he has made serious
3 allegations which, if proved, would entitle him to relief, his case is not exceptional. The Court is
4 faced with similar cases almost daily. Further, the Court cannot make a determination that
5 Plaintiff is likely to succeed on the merits. This action arises out of an incident of alleged
6 excessive force and as such, resolution will be based upon credibility determinations made by the
7 jury. Finally, the legal issues are not complex and the record reflects Plaintiff’s ability to
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For the foregoing reasons, Plaintiff’s motion for the appointment of counsel is HEREBY

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Palmer, 560 F.3d at 970; Wilborn 789 F.2d at 1331.

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12 IT IS SO ORDERED.
13 Dated:
i0d3h8
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March 20, 2012

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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