Colbert v. Chavez et al

Filing 74

ORDER DENYING Plaintiff's 73 Motion for Appointment of Counsel, Without Prejudice, signed by Magistrate Judge Stanley A. Boone on 10/6/15. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GEORGE K. COLBERT,

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Plaintiff,
v.
P. CHAVEZ, et al.,
Defendants.

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Case No.: 1:10-cv-00250-AWI-SAB (PC)
ORDER DENYING PLAINTIFF’S MOTION FOR
APPOINTMENT OF COUNSEL, WITHOUT
PREJUDICE
[ECF No. 73]

Plaintiff George K. Colbert is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.
Now pending before the Court is Plaintiff’s motion for the appointment of counsel, filed
October 5, 2015.

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There is no constitutional right to appointed counsel in this action, Rand v. Rowland, 113 F.3d

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1520, 1525 (9th Cir. 1997), and the Court cannot require any attorney to represent plaintiff pursuant to

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28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa, 490

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U.S. 296, 298 (1989). However, in certain exceptional circumstances the Court may request the

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voluntary assistance of counsel 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 on the
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merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the

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legal issues involved.” Id. (internal quotation marks and citations omitted).

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In the present case, the Court finds that neither the interests of justice nor exceptional

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circumstances warrant appointment of counsel at this time. LaMere v. Risley, 827 F.2d 622, 626 (9th

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Cir. 1987); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). While counsel may be able to

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cross-examine witnesses at trial, so long as a pro se litigant, like Plaintiff in this case, is able to

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“articulate his claims against the relative complexity of the matter,” the “exceptional circumstances”

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which might require the appointment of counsel do not exist. Rand, 113 F.3d at 1525 (finding no

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abuse of discretion under 28 U.S.C. § 1915(e) when district court denied appointment of counsel

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despite fact that pro se prisoner “may well have fared better-particular in the realms of discovery and

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the security of expert testimony.”) Indeed, any pro se litigant “would be better served with the

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assistance of counsel.” Id.

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In this case, Plaintiff is proceeding on a claim of excessive force against Defendants Chavez,

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Lindsey, Emard, Flores, Ramirez, and Farnsworth, and against Defendants Chavez, Lindsey, Emard,

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Flores, and Ramirez for retaliation. Defendant Douncan was dismissed from the action pursuant to

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Rule 4(m) of the Federal Rules of Civil Procedure. (ECF No. 38.) To date, Plaintiff has demonstrated

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an ability to articulate the factual and legal basis for his arguments and has effectively litigated this

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case. In addition, circumstances common to most prisoners, such as lack of legal education and

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limited law library access, do not establish exceptional circumstances that would warrant a request for

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voluntary assistance of counsel. Furthermore, Defendants have filed a motion for summary judgment

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which is presently pending before the Court and the Court cannot determine at this juncture whether

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Plaintiff is likely to proceed on the merits of his claims. Accordingly, Plaintiff’s motion for the

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appointment of counsel is DENIED, without prejudice.

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IT IS SO ORDERED.

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Dated:

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October 6, 2015
UNITED STATES MAGISTRATE JUDGE

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