Colbert v. Chavez et al

Filing 87

ORDER DENYING, WITHOUT PREJUDICE, Plaintiff's Second 86 Motion to Appoint Counsel, signed by Magistrate Judge Stanley A. Boone on 07/11/2016. (Martin-Gill, S)

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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.,

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Defendants.

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Case No.: 1:10-cv-00250-DAD-SAB (PC)
ORDER DENYING, WITHOUT PREJUDICE,
PLAINTIFF’S SECOND MOTION FOR
APPOINTMENT OF COUNSEL
[ECF No. 86]

Plaintiff George K. Colbert is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.

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Currently before the Court is Plaintiff’s second motion for the appointment of counsel,

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filed July 7, 2016. (ECF No. 86.) There is no constitutional right to appointed counsel in this action,

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Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require any attorney to

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

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Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances

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the Court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113

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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 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). Plaintiff is proceeding against

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Defendants Ramirez and Flores for excessive force and retaliation and against Defendant Farnsworth

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for failure to protect, and Plaintiff has demonstrated an ability to articulate the factual and legal basis

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for his arguments and has effectively litigated this case to date. While a pro se litigant may be better

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served with the assistance of counsel, so long as a pro se litigant, such as Plaintiff in this instance, is

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

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circumstances” which might require the appointment of counsel do not exist. Rand v. Rowland, 113

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F.3d at 1525 (finding no abuse of discretion under 28 U.S.C. § 1915(e) when district court denied

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appointment of counsel despite fact that pro se prisoner “may well have fared better-particularly in the

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realm of discovery and the securing of expert testimony.”) In addition, circumstances common to

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most prisoners, such as lack of legal education and limited law library access, do not establish

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exceptional circumstances that would warrant a request for voluntary assistance of counsel. Based on

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the information presently before the Court, it is apparent that Plaintiff has the competence necessary to

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pursue this case to trial. Thus, the Court finds that Plaintiff’s arguments do not present exceptional
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circumstances warranting the appointment of counsel at this time. Accordingly, Plaintiff second

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motion for appointment of counsel is DENIED, without prejudice.

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IT IS SO ORDERED.

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Dated:

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July 11, 2016
UNITED STATES MAGISTRATE JUDGE

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