Johnson v. Gonzalez et al

Filing 136

ORDER DENYING 132 Motion to Appoint Counsel, signed by Magistrate Judge Barbara A. McAuliffe on 03/02/2015. (Martin-Gill, S)

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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-BAM (PC)
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(ECF No. 132)

Defendants.

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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 claim of excessive force in violation of the Eighth Amendment against Defendant

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Gonzales (erroneously sued as L. Gonzalez) and Defendant Murrieta arising out of an alleged

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assault following the takedown by Defendant Gonzales on June 9, 2009. This matter is set for

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trial on April 28, 2015.

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On February 13, 2015, Plaintiff filed the instant motion requesting the appointment of

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counsel. As Plaintiff was previously informed, he does not have a constitutional right to

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appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the

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Court cannot require an attorney to represent Plaintiff pursuant to 28 U.S.C. ' 1915(e)(1).

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Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296, 298, 109

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S.Ct. 1814, 1816 (1989). However, in certain exceptional circumstances the court may request
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the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525.
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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Here, Plaintiff argues that the interests of justice require the appointment of counsel

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because he has a third grade level of education and has relied on the assistance of another prisoner

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in this action. In support of his motion, Plaintiff attaches a report from May 2012 showing a 3.8

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GE (grade equivalent) on reading subtests, along with the declaration of Inmate Kevin E. Fields

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stating that he has had to assist Plaintiff in this action since September 2010 and that Plaintiff

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does not understand what he reads. (ECF No. 132, Exs. A, B.)

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The Court has considered Plaintiff’s moving papers, but does not find the required

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exceptional circumstances. This Court is faced with similar excessive force cases almost daily

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from incarcerated prisoners without legal training. While there may be merit to his claims and

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this action is proceeding to trial, Plaintiff’s single education record, which is nearly three years

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old, does not permit the Court to conclude that he cannot understand the proceedings or articulate

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his claims.

Rand, 113 F.3d at 1525.

Accordingly, Plaintiff=s motion for the appointment of counsel is HEREBY DENIED
without prejudice.
IT IS SO ORDERED.

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Dated:

/s/ Barbara

March 2, 2015

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE
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