McDonald v. Yates et al

Filing 61

ORDER DENYING 54 Motion to Appoint Counsel WITHOUT PREJUDICE, signed by Magistrate Judge Sheila K. Oberto on 05/21/2012. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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JIMMY MCDONALD,

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Plaintiff,

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CASE NO. 1:09-cv-00730-LJO-SKO PC
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL OR
INVESTIGATOR

v.
J. A. YATES, et al.,

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(Doc. 54)
Defendants.
/

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Plaintiff Jimmy McDonald is a state prisoner proceeding pro se and in forma pauperis in this

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civil rights action pursuant to 42 U.S.C. § 1983. On April 2, 2012, Plaintiff filed a motion seeking

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the appointment of counsel or an investigator.

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Plaintiff does not have a constitutional right to the appointment of counsel in this action.

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Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009); Storseth v. Spellman, 654 F.2d 1349, 1353 (9th

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Cir. 1981). The Court may request the voluntary assistance of counsel pursuant to 28 U.S.C.

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§ 1915(e)(1), but it will do so only if exceptional circumstances exist. Palmer, 560 F.3d at 970;

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Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1981). In making this determination, the

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Court must evaluate the likelihood of success on the merits and the ability of Plaintiff to articulate

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his claims pro se in light of the complexity of the legal issues involved. Palmer, 560 F.3d at 970

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(citation and quotation marks omitted); Wilborn, 789 F.2d at 1331. Neither consideration is

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dispositive and they must be viewed together. Palmer, 560 F.3d at 970 (citation and quotation marks

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omitted); Wilborn 789 F.2d at 1331.

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In the present case, the Court does not find the required exceptional circumstances. Even if

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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. The Court is faced with

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similar cases almost daily. Further, at this stage in the proceedings, the Court cannot make a

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determination that Plaintiff is likely to succeed on the merits, and based on a review of the record

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in this case, the Court does not find that Plaintiff cannot adequately articulate his claims. Id.

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The Court also cannot appointment an investigator. The expenditure of public funds on

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behalf of an indigent litigant is proper only when authorized by Congress, and no such authorization

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exists. Tedder v. Odel, 890 F.2d 210, 211-12 (9th Cir. 1989) (quotation marks and citation omitted).

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For the foregoing reasons, Plaintiff’s motion for the appointment of counsel or an

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investigator is HEREBY DENIED, without prejudice.

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IT IS SO ORDERED.

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Dated:
ie14hj

May 21, 2012

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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