Ivory v. Tilton, et al.

Filing 134

ORDER Denying Motion For Appointment Of Counsel (Doc. 128 ), signed by Magistrate Judge Gary S. Austin on 6/27/2013. (Fahrney, E)

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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.
C/O MERAZ,

( #128)
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Defendant.

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________________________________/

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On May 24, 2013, plaintiff filed a motion seeking the appointment of counsel. Plaintiff

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does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 113

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

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

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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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“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. The

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legal issue in this case B whether defendant used excessive force against plaintiff – is not

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complex, and this court is faced with similar cases almost daily. Based on a review of the

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record in this case, the court does not find that plaintiff cannot adequately articulate his claims

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or respond to court orders. Further, the court cannot make a determination that plaintiff is

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likely to succeed on the merits.

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

June 27, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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