McDaniel v. Chavez et al
Filing
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ORDER DENYING 24 Motion to Appoint Counsel signed by Magistrate Judge Gary S. Austin on 9/26/2014. (Jessen, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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ROBERT MCDANIEL,
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Plaintiff,
v.
FRANK X. CHAVEZ, et al.,
1:10-cv-01077-LJO-GSA (PC)
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(Document# 24)
Defendants.
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On September 25, 2014, plaintiff filed a motion seeking the appointment of counsel.
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Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. Rowland,
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113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to represent
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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, 109 S.Ct. 1814, 1816 (1989). However, in certain
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exceptional circumstances the court may request the voluntary assistance of counsel pursuant to
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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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Aexceptional circumstances exist, the district court must evaluate both the likelihood of success of
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the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the
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complexity of the legal issues involved.@ Id. (internal quotation marks and citations omitted).
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In the present case, the court does not find the required exceptional circumstances. At this
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early stage in the proceedings, the court cannot make a determination that plaintiff is likely to
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succeed on the merits. Plaintiff=s second amended complaint, filed on September 15, 2014,
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awaits screening by the court. (Doc. 21.) Until the second amended complaint is screened and
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the court finds that Plaintiff states cognizable claims, service of process shall not be initiated upon
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the defendants. Moreover, based on a review of the record in this case, the court does not find
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that plaintiff cannot adequately articulate his claims. See id. Plaintiff argues that he cannot
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afford counsel, he lacks legal expertise, and he takes psychotropic medications daily which affect
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his alertness and focus. While these conditions make litigation challenging, they do not amount
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to exceptional circumstances under the law.
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Therefore, Plaintiff=s motion shall be denied without prejudice to renewal of the motion at a later
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stage of the proceedings.
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The court is faced with similar cases daily.
For the foregoing reasons, plaintiff=s motion for the appointment of counsel is HEREBY
DENIED, without prejudice.
IT IS SO ORDERED.
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Dated:
September 26, 2014
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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