Lopez v. Florez et al

Filing 51

ORDER DENYING 50 Motion to Appoint Counsel, signed by Magistrate Judge Jennifer L. Thurston on 5/4/2012. (Marrujo, C)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANDREW R. LOPEZ,

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Case No. 1:08-cv-01975-LJO-JLT (PC)

Plaintiff,

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vs.

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ORDER DENYING MOTION TO
APPOINT COUNSEL

FLOREZ, et al,

(Doc. 50).
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Defendants.

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On May 1, 2012, Plaintiff filed his third motion asking this Court to appoint counsel.

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(Doc. 50). Plaintiff filed two previous motions for appointment of counsel, the last of which was

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denied on March 14, 2012. (See Docs. 16, 21, 24, 36, 44.) Plaintiff again argues that he cannot

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afford counsel, that his imprisonment will make it difficult to litigate the case, that he has limited

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knowledge of the law, that the issues in his case are complex, and that his case would be better

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handled by legal counsel. (Doc. 50).

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recognizes, as noted in the previous orders denying Plaintiff's motion to appoint counsel, that

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Plaintiff is in no different position than other pro se prisoner litigants. Plaintiff again fails to show

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that there are exceptional circumstances in his case that would require appointment of counsel.

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The Court recognizes Plaintiff's concerns, but also

For the reasons set forth below, Plaintiff’s third motion for appointment of counsel is
DENIED.

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Plaintiff is aware, from his prior motions, that he 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). Mallard

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

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

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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 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

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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. This Court is faced with

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similar cases almost daily. Furthermore, the only new event that has occurred since the Court’s

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March 14, 2012 order denying Plaintiff’s last motion for counsel is the service of the operative

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Complaint on Defendants. (Doc. 49). At this early stage in the proceedings, the Court is still

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unable to make a determination that Plaintiff is likely to succeed on the merits.

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review of the record in this case, especially the documents Plaintiff filed in support of this

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motion, the Court does not find that Plaintiff cannot adequately articulate his claims. Id.
For the foregoing reasons, plaintiff’s motion for the appointment of counsel is DENIED,

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Based on a

without prejudice.

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IT IS SO ORDERED.
Dated:

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May 4, 2012

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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DEAC_Signature-END:

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