Calloway v. Veal et al

Filing 136

ORDER DENYING 134 Motion for Appointment of Counsel or Expert Witness signed by Magistrate Judge Gary S. Austin on 2/6/14. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,

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1:08-cv-01896-LJO-GSA- PC)

JAMISI JERMAINE CALLOWAY,

ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL OR
EXPERT WITNESS

v.
C/O W. HAYWARD AND C/O J. OAKS,

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(Document # 134)

Defendants.

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I.

BACKGROUND

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Jamisi Jermaine Calloway (“Plaintiff”) is a state prisoner proceeding pro se with this civil

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rights action pursuant to 42 U.S.C. § 1983. This case now proceeds on the Third Amended

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Complaint filed by Plaintiff on October 5, 2009, against defendants C/O Hayward and C/O Oaks

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for use of excessive force in violation of the Eighth Amendment. (Doc. 20.) This case is

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scheduled for jury trial on April 22, 2014, before District Judge Lawrence J. O’Neill.
On February 5, 2014, Plaintiff filed a motion seeking the appointment of counsel or the

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appointment of an expert witness. (Doc. 134.)

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II.

MOTION FOR 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 for

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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.
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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Aexceptional 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

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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. Even

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if it is assumed that Plaintiff is not well versed in the law and that he has made serious allegations

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which, if proved, would entitle him to relief, his case is not exceptional. A review of the record in

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this case shows that Plaintiff is responsive, adequately communicates, and is able to articulate his

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claims. The court notes that Plaintiff has filed several other cases pro se and appears able to

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navigate the federal court system.

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excessive force B is not complex, and this court is faced with similar cases almost daily. Further,

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the court cannot make a determination that Plaintiff is likely to succeed on the merits. Id.

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Therefore, Plaintiff’s motion for the appointment of counsel shall be denied.

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III.

The legal issue in this case B whether defendants used

MOTION FOR APPOINTMENT OF EXPERT WITNESS

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In the alternative, Plaintiff requests a court-appointed expert witness. The expenditure of

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public funds on behalf of an indigent litigant is proper only when authorized by Congress, see

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Tedder v. Odel, 890 F.2d 210 (9th Cir. 1989) (citations omitted), and the in forma pauperis statute

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does not authorize the expenditure of public funds for the purpose sought by Plaintiff in the

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instant request. Therefore, Plaintiff’s motion for appointment of an expert witness shall be

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denied.

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IV.

CONCLUSION
For the foregoing reasons, Plaintiff=s motion for the appointment of counsel or an expert

witness, filed on May 1, 2013, is HEREBY DENIED, without prejudice.

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IT IS SO ORDERED.
Dated:

February 6, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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