Sims v. Lopez et al

Filing 93

ORDER DENYING Plaintiff's Renewed Motion for Appointment of Counsel 92 , signed by Magistrate Judge Barbara A. McAuliffe on 12/10/14: Motion is DENIED without prejudice. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,

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1:10-cv-01409-BAM (PC)

KELVIN SIMS,

v.
SHERRY LOPEZ, et al,

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ORDER DENYING PLAINTIFF’S RENEWED
MOTION FOR APPOINTMENT OF COUNSEL
(ECF No. 92)

Defendants.

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Plaintiff Kelvin Sims is a state prisoner proceeding pro se and in forma pauperis in this

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civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds against Defendant Lopez

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for retaliation in violation of the First Amendment, and against Defendants Akanno and Lopez for

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deliberate indifference in violation of the Eighth Amendment and medical malpractice under state

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law.

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On December 8, 2014, Plaintiff filed a renewed motion for the appointment of counsel in

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this action. As Plaintiff previously has been informed, he does not have a constitutional right to

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appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the

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Court cannot require an attorney to represent plaintiff pursuant to 28 U.S.C. ' 1915(e)(1).

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Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296, 298, 109

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S.Ct. 1814, 1816 (1989). However, in certain exceptional circumstances the court may request

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the 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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Aexceptional circumstances exist, the district court must evaluate both the likelihood of success on

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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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Plaintiff has not identified any exceptional circumstances warranting the appointment of

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counsel. This Court is faced with similar cases almost daily from prisoners with no legal

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experience prosecuting actions while incarcerated. Further, at this stage in the proceedings, the

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Court cannot make a determination that Plaintiff is likely to succeed on the merits. Plaintiff

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asserts that he has a meritorious claim because the Court has not immediately granted

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Defendants’ motion for summary judgment. However, the fact that Defendants’ motion for

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summary judgment remains pending is not a reflection on the merits of the underlying matter.

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Additionally, based on a review of the record in this case, the Court does not find that Plaintiff

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cannot adequately articulate his claims. Id.

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For the foregoing reasons, Plaintiff=s renewed motion for the appointment of counsel is
HEREBY DENIED without prejudice.

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IT IS SO ORDERED.
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Dated:

/s/ Barbara

December 10, 2014

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE
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