Ivory v. Tilton, et al.

Filing 119

ORDER DENYING 118 Motion to Appoint Counsel signed by Magistrate Judge Gary S. Austin on 3/21/2013. (Jessen, A)

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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NORMAN IVORY,

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1:09-cv-01272-AWI-GSA (PC)

Plaintiff,
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

vs.

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JAMES E. TILTON, et al.,

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Defendants.

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________________________________/

( #118)

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On March 15, 2013, plaintiff filed a 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.

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

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

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

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

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pursuant to 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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“exceptional circumstances exist, the district court must evaluate both the likelihood of success

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of 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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While the court has recommended that Defendants' motion for summary judgment be denied,

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this is not an indication that Plaintiff is likely to succeed on the merits. Plaintiff informs the

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court that he has mental and hearing impairments. A review of the record in this case shows

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that plaintiff is responsive, adequately communicates, and is able to articulate his claims. The

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court notes that Plaintiff has filed another case pro se and appears able to navigate the federal

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court system. With respect to Plaintiff's hearing loss, Plaintiff has submitted evidence that he

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uses hearing aids. (Doc. 118 at 5.) Moreover, the legal issue in this case – whether defendant

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Meraz used excessive force against plaintiff – is not complex, and this court is faced with

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similar cases almost daily.
For the foregoing reasons, plaintiff’s motion for the appointment of counsel is HEREBY
DENIED, without prejudice.
IT IS SO ORDERED.
Dated:
220hhe

March 21, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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