White v. Patel et al

Filing 46

ORDER DENYING Motion for Appointment of Counsel 44 , signed by Magistrate Judge Gary S. Austin on 4/24/14. (Hellings, J)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JEROME WHITE, 12 13 14 15 Plaintiff, v. 1:11-cv-00047 AWI GSA (PC) ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL (Document# 44) PATEL, et al., Defendants. 16 17 On April 23, 2014, 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 19 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to represent plaintiff 20 pursuant to 28 U.S.C. ' 1915(e)(1). Mallard v. United States District Court for the Southern 21 District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in certain 22 exceptional circumstances the court may request the voluntary assistance of counsel pursuant to 23 section 1915(e)(1). Rand, 113 F.3d 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 Aexceptional circumstances exist, the district court must evaluate both the likelihood of success 27 of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 28 complexity of the legal issues involved.@ Id. (internal quotation marks and citations omitted). 1 1 In the present case, plaintiff argues that he is housed in an outpatient facility for mentally 2 disturbed persons and has no reasonable way to obtain counsel. This does not make plaintiff’s 3 case exceptional. This court is faced with similar cases daily. While the court has found that 4 plaintiff states cognizable claims for inadequate medical care under the Eighth Amendment, this 5 finding is not a determination that plaintiff is likely to succeed on the merits and at this juncture, 6 the court cannot find that plaintiff is likely to succeed on the merits. Plaintiff’s medical claims do 7 not appear complex, and based on a review of the record in this case, the court does not find that 8 plaintiff cannot adequately articulate his claims. Thus, the court does not find the required 9 exceptional circumstances, and plaintiff’s motion shall be denied without prejudice to renewal of 10 11 12 the motion at a later stage of the proceedings. For the foregoing reasons, plaintiff=s motion for the appointment of counsel is HEREBY DENIED, without prejudice. 13 IT IS SO ORDERED. 14 15 Dated: April 24, 2014 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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