Mootry v. Flores et al

Filing 75

ORDER DENYING 74 Motion to Appoint Counsel signed by Magistrate Judge Barbara A. McAuliffe on 1/3/2014. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MICHAEL MOOTRY,

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Plaintiff,
v.

1:09-cv-01252-LJO-BAM (PC)
ORDER DENYING MOTION REQUESTING
APPOINTMENT OF COUNSEL
(ECF No. 74)

E. G. FLORES, et al.,

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Defendant.

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Plaintiff Michael Mootry (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On December 30, 2013, Plaintiff

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filed the instant motion seeking the appointment of counsel. Plaintiff does not have a

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constitutional right to appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525

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(9th Cir. 1997), and the court cannot require an attorney to represent plaintiff pursuant to 28

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U.S.C. ' 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa,

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490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in certain exceptional circumstances

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the court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand,

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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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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.

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Although Plaintiff asserts that he is unable to handle his own representation because he is in a

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psychiatric service unit and taking psychotropic medication, Plaintiff has not provided factual

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evidence to support this assertion. Plaintiff also claims that he only has “moments of clarity,” but

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his moving papers are clear, concise and adequately articulate his position. Even if it is assumed

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

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proved, would entitle him to relief, his case is not exceptional. This court is faced with similar

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cases almost daily. Further, at this early 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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To the extent Plaintiff seeks counsel because of limited access to his legal work or other

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property, this is not a sufficient basis for appointment of counsel. If Plaintiff requires additional

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time for research or access to his materials, Plaintiff may request appropriate extensions of any
relevant, pending court deadlines.
For the foregoing reasons, plaintiff=s motion for the appointment of counsel is HEREBY
DENIED without prejudice.
IT IS SO ORDERED.

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Dated:

/s/ Barbara

January 3, 2014

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UNITED STATES MAGISTRATE JUDGE

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A. McAuliffe

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