McDonald v. Yates et al

Filing 41

ORDER Denying 40 Motion to Appoint Counsel, signed by Magistrate Judge Sheila K. Oberto on 11/2/11. (Verduzco, M)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT FOR THE

9

EASTERN DISTRICT OF CALIFORNIA

10
11

JIMMY MCDONALD,

12

Plaintiff,

13

ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

vs.

14

1:09-cv-00730-LJO-SKO (PC)

CLARK, et al.,

( #40)
15

Defendants.

16

________________________________/

17

On October 31, 2011, plaintiff filed a motion seeking the appointment of counsel.

18

Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v.

19

Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to

20

represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court

21

for the Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in

22

certain exceptional circumstances the court may request the voluntary assistance of counsel

23

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

24

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

25

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

26

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

27

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

28

the complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted).
-1-

1

In the present case, the court does not find the required exceptional circumstances.

2

Even 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. This court is

4

faced with similar cases almost daily. Further, at this stage in the proceedings, the court cannot

5

make a determination that plaintiff is likely to succeed on the merits, and based on a review of

6

the record in this case, the court does not find that plaintiff cannot adequately articulate his

7

claims. Id.

8
9

For the foregoing reasons, plaintiff’s motion for the appointment of counsel is
HEREBY DENIED, without prejudice.

10
11

IT IS SO ORDERED.

12

Dated:
i0d3h8

November 2, 2011

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-2-