Bertram v. Sizelove, et al

Filing 52

ORDER Denying 50 Motion for Appointment Counsel, signed by Magistrate Judge Gerald B. Cohn on 10/24/11. (Verduzco, M)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT FOR THE

9

EASTERN DISTRICT OF CALIFORNIA

10
11

TIMOTHY BERTRAM,

12

1:10-cv-00583-AWI-GBC (PC)

Plaintiff,
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

13

vs.

14

C. SIZELOVE, et al,
(Doc. #50)

15

Defendants.

16

________________________________/

17

On October 13, 2011, Plaintiff filed a motion seeking the appointment of counsel. Plaintiff

18

does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 113 F.3d

19

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

20

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

21

490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in certain exceptional circumstances the

22

court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d

23

at 1525.

24

Without a reasonable method of securing and compensating counsel, the court will seek

25

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

26

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

27

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

28

of the legal issues involved.” Id. (internal quotation marks and citations omitted).
-1-

1

In the present case, the court does not find the required exceptional circumstances. Even if

2

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

3

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

4

similar cases almost daily. Further, at this early stage in the proceedings, the court cannot make a

5

determination that plaintiff is likely to succeed on the merits, and based on a review of the record

6

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

7
8

For the foregoing reasons, plaintiff’s motion for the appointment of counsel is HEREBY
DENIED, without prejudice.

9
10

IT IS SO ORDERED.

11
12

Dated:
0jh02o

October 24, 2011
UNITED STATES MAGISTRATE JUDGE

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-2-