Sheppard v. Igbinosa et al

Filing 25

ORDER Denying 24 Motion to Appoint Counsel, signed by Magistrate Judge Gary S. Austin on 11/15/12. (Verduzco, M)

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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LONZO SHEPPARD,

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1:10-cv-01716-LJO-GSA (PC)

Plaintiff,
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

vs.
FELIX IGBINOSA, et al.,

( #24)
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Defendants.

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________________________________/

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On November 8, 2012, Plaintiff filed a motion seeking the appointment of counsel. This

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is Plaintiff’s third motion for appointment of counsel within two months. Plaintiff’s circumstances

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have not changed, and the motion shall again be denied.

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Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v.

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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to

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

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the Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in

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certain exceptional circumstances the court may request the voluntary assistance of counsel

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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
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of 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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The court does not find the required exceptional circumstances in this case. At this early

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stage of the proceedings, the court cannot make a determination that Plaintiff is likely to succeed

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on the merits. Plaintiff has filed three complaints in this action without stating a cognizable claim,

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and Plaintiff’s Third Amended Complaint, filed on July 9, 2012, awaits the court’s requisite

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screening. Based on cursory review of the Third Amended Complaint, the court does not find that

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plaintiff cannot adequately articulate his claims. Moreover, Plaintiff’s claim – that he was denied

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adequate medical treatment – is not complex, and the court is faced with similar cases almost daily.

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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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For the foregoing reasons, Plaintiff’s motion for the appointment of counsel, filed on
November 8, 2012, is HEREBY DENIED, without prejudice.
IT IS SO ORDERED.
Dated:
220hhe

November 15, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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