Johnson v. Gonzalez et al

Filing 115

ORDER DENYING 112 Motion to Appoint Counsel, signed by Magistrate Judge Barbara A. McAuliffe on 8/25/2014. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ANTHONY JOHNSON,

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Plaintiff,
v.
L. GONZALEZ, et al.,

1:09-cv-01264-AWI-BAM (PC)
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(ECF No. 112)

Defendant(s).

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Plaintiff Anthony Johnson (“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. This action proceeds on

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Plaintiff’s complaint, filed on July 21, 2009, against Defendants L. Gonzales and A. Murrieta for

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excessive force in violation of the Eighth Amendment.

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On August 22, 2014, Plaintiff filed the instant motion seeking the appointment of counsel.

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

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

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plaintiff pursuant to 28 U.S.C. ' 1915(e)(1). Mallard v. United States District Court for the

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

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exceptional circumstances the court may request the voluntary assistance of counsel pursuant to

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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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Aexceptional circumstances exist, the district court must evaluate both the likelihood of success on

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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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Plaintiff asserts that he requires the appointment of counsel because he is highly

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medicated on pain medications, including Oxcarbazepine and Gabapentin, and he suffers from a

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condition called H-pylori/Gastritis, which causes constant stomach pain. Plaintiff also asserts that

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he requires the appointment of counsel because the issues are complex, he has very little legal

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experience and he relies on the assistance of other prisoners. (ECF No. 112.)

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The Court has considered Plaintiff’s moving papers, declaration and exhibits, but does not

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find the required exceptional circumstances. Even if it is assumed that Plaintiff is not well versed

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in the law and that he has made serious allegations which, if proved, would entitle him to relief,

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his case is not exceptional. This Court is faced with similar cases alleging excessive force almost

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daily from indigent prisoners with little or no legal experience. Further, at this stage in the

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proceedings, the Court cannot make a determination that Plaintiff is likely to succeed on the

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merits, and based on a review of the record in this case, the Court does not find that Plaintiff’s

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condition prevents him from adequately articulating his claims. Id.
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

August 25, 2014

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UNITED STATES MAGISTRATE JUDGE

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A. McAuliffe

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