Colbert v. Chavez et al

Filing 93

ORDER Denying, without Prejudice, Plaintiff's Third 91 Motion to Appoint Counsel signed by Magistrate Judge Stanley A. Boone on 09/16/2016. (Flores, E)

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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-DAD-SAB (PC)
ORDER DENYING, WITHOUT PREJUDICE,
PLAINTIFF’S THIRD MOTION FOR THE
APPOINTMENT OF COUNSEL
[ECF No. 91]

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

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September 15, 2016. (ECF No. 86.) There is no constitutional right to appointed counsel in this

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

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

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

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circumstances the Court may request the voluntary assistance of counsel pursuant to section

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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 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 Chavez, Lindsey, Emard and Ramirez Flores for excessive force and retaliation and

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against Defendant Farnsworth for failure to protect, and Plaintiff has demonstrated an ability to

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articulate the factual and legal basis for his arguments and has effectively litigated this case to date.

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While a pro se litigant may be better served with the assistance of counsel, so long as a pro se litigant,

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such as Plaintiff in this instance, is able to “articulate his claims against the relative complexity of the

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matter,” the “exceptional circumstances” which might require the appointment of counsel do not exist.

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Rand v. Rowland, 113 F.3d at 1525 (finding no abuse of discretion under 28 U.S.C. § 1915(e) when

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district court denied appointment of counsel despite fact that pro se prisoner “may well have fared

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better-particularly in the realm of discovery and the securing of expert testimony.”) In addition,

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circumstances common to most prisoners, such as lack of legal education and limited law library

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access, do not establish exceptional circumstances that would warrant a request for voluntary

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assistance of counsel. Based on the information presently before the Court, it is apparent that Plaintiff

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

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time. Accordingly, Plaintiff third 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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September 16, 2016
UNITED STATES MAGISTRATE JUDGE

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