Ivory v. Tilton, et al.

Filing 69

ORDER DENYING 68 Motion to Appoint Counsel signed by Magistrate Judge Gary S. Austin on 9/15/2011. (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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________________________________/

( #68)

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On September 14, 2011, plaintiff filed a motion seeking the appointment of

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counsel. 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, in

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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

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will seek volunteer counsel only in the most serious and exceptional cases. In determining

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whether “exceptional circumstances exist, the district court must evaluate both the likelihood of

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success of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of

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the 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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Even if it is assumed that plaintiff is not well versed in the law and that he has made serious

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allegations which, if proved, would entitle him to relief, his case is not exceptional. This court is

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faced with similar cases almost daily. Further, at this early stage in the proceedings, the court

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cannot make a determination that plaintiff is likely to succeed on the merits, and based on a

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review of the record in this case, the court does not find that plaintiff cannot adequately articulate

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his claims. Id.

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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

September 15, 2011

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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