McDonald v. Yates et al

Filing 112

ORDER Denying 111 Motion for Appointment of Counsel, signed by Magistrate Judge Sheila K. Oberto on 2/20/13. (Gonzalez, R)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 JIMMY MCDONALD, 10 CASE NO. 1:09-cv-00730-LJO-SKO PC Plaintiff, 11 ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL v. (Doc. 111) 12 J. A. YATES, et al., 13 Defendants. / 14 15 Plaintiff Jimmy McDonald is a state prisoner proceeding pro se and in forma pauperis in this 16 civil rights action pursuant to 42 U.S.C. § 1983. On February 7, 2013, Plaintiff filed a motion 17 seeking the appointment of counsel. 18 Plaintiff does not have a constitutional right to the appointment of counsel in this action. 19 Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009); Storseth v. Spellman, 654 F.2d 1349, 1353 (9th 20 Cir. 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 articulate 24 his claims pro se in light of the complexity of the legal issues involved. Palmer, 560 F.3d at 970 25 (citation and quotation marks omitted); Wilborn, 789 F.2d at 1331. Neither consideration is 26 dispositive and they must be viewed together. Palmer, 560 F.3d at 970 (citation and quotation marks 27 omitted); Wilborn 789 F.2d at 1331. 28 /// 1 1 In the present case, the Court does not find the required exceptional circumstances. Even if 2 it is assumed that Plaintiff is not well versed in the law and that he has made serious allegations 3 which, if proved, would entitle him to relief, his case is not exceptional. The Court is faced with 4 similar cases almost daily. Further, at this stage in the proceedings, the Court cannot make a 5 determination that Plaintiff is likely to succeed on the merits, and based on a review of the record 6 in this case, the Court does not find that Plaintiff cannot adequately articulate his claims. Id. 7 Plaintiff was able to successfully oppose Defendants’ motion for summary judgment and at trial, the 8 issues will largely be determined by the credibility of the parties’ testimony. 9 10 For the foregoing reasons, Plaintiff’s motion for the appointment of counsel is HEREBY DENIED, without prejudice. 11 12 IT IS SO ORDERED. 13 Dated: i0d3h8 February 20, 2013 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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