Ford v. Wildey et al

Filing 114

ORDER Denying, without Prejudice, Plaintiff's 113 Motion to Appoint Counsel signed by Magistrate Judge Stanley A. Boone on 04/08/2015. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BENNY FORD,

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Plaintiff,
v.
G. WILDEY, et al.,
Defendants.

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Case No.: 1:10-cv-01024-LJO-SAB (PC)
ORDER DENYING, WITHOUT PREJUDICE,
PLAINTIFF’S MOTION FOR APPOINTMENT
OF COUNSEL
[ECF No. 113]

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

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On March 30, 2015, Plaintiff filed a motion for the appointment of counsel.

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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).
In the present motion, Plaintiff contends that he recently received an order from the Court

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granting Defendants leave to file confidential records under seal for in camera review. (ECF No. 113

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at 1.) Plaintiff contends that as a pro se litigant he is at a serious disadvantage in trying to prosecute

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this case without necessary documentation by way of discovery.
The Court does find that neither the interests of justice nor exceptional circumstances warrant

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appointment of counsel at this time. LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987); Terrell v.

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Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). On March 23, 2015, the Court granted in part and

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denied in part Defendants’ request for a protective order, and directed that Defendants provide

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Plaintiff with a copy of the appeal inquiry report (the subject of the confidential record) after redaction

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of identifying information. (ECF No. 111.) Thus, there is no basis to Plaintiff’s argument that he

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presently at a disadvantage in prosecuting this action without obtaining the confidential document that

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was the subject of in camera review. In addition, while a pro se litigant may be better served with the

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assistance of counsel, so long as a pro se litigant, such as Plaintiff in this instance, is able to “articulate

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

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

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

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that pro se prisoner “may well have fared better-particularly in the realm of discovery and the securing

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of expert testimony.”) Thus, the Court finds that Plaintiff’s argument regarding his ability to obtain

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discovery is not an exceptional circumstances warranting the appointment of counsel at this time.

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Accordingly, Plaintiff 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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April 8, 2015
UNITED STATES MAGISTRATE JUDGE

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