Abercrombie v. Corcoran State Prison et al

Filing 19

ORDER Denying Motion For Appointment Of Counsel (Doc, 14 ), signed by Magistrate Judge Gary S. Austin on 5/16/2013. (Fahrney, E)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT FOR THE 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD ABERCROMBIE, 12 13 14 1:11-cv-00048-GSA (PC) Plaintiff, ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL vs. CORCORAN STATE PRISON, et al., (Document #14) 15 Defendants. 16 ________________________________/ 17 On March 21, 2013, plaintiff filed a motion seeking the appointment of counsel. 18 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 19 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to 20 represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court 21 for the Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, 22 in certain exceptional circumstances the court may request the voluntary assistance of counsel 23 pursuant to 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 “exceptional 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, the court does not find the required exceptional circumstances. At 2 this stage in the proceedings, the court cannot make a determination that plaintiff is likely to 3 succeed on the merits. This case proceeds against only one defendant, Richard Kaut, and the 4 Marshal has been unable to serve the defendant because he cannot be located. Moreover, based 5 on the record in this case, the court does not find that plaintiff cannot adequately articulate his 6 claims and respond to court orders. Further, the legal issue in this case – whether defendant 7 provided plaintiff with inadequate medical care – is not complex, and this court is faced with 8 similar cases almost daily. Therefore, plaintiff’s motion shall be denied without prejudice to 9 renewal of the motion at a later stage of the proceedings. 10 11 12 13 For the foregoing reasons, plaintiff’s motion for the appointment of counsel is HEREBY DENIED, without prejudice. IT IS SO ORDERED. Dated: 220hhe May 16, 2013 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2-

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