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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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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RICHARD ABERCROMBIE,

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1:11-cv-00048-GSA (PC)

Plaintiff,
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

vs.
CORCORAN STATE PRISON, et al.,

(Document #14)
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Defendants.

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________________________________/

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On March 21, 2013, 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.

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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

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

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in 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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In the present case, the court does not find the required exceptional circumstances. At

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this stage in the proceedings, the court cannot make a determination that plaintiff is likely to

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succeed on the merits. This case proceeds against only one defendant, Richard Kaut, and the

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Marshal has been unable to serve the defendant because he cannot be located. Moreover, based

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on the record in this case, the court does not find that plaintiff cannot adequately articulate his

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claims and respond to court orders. Further, the legal issue in this case – whether defendant

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provided plaintiff with inadequate medical care – is not complex, and this court is faced with

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similar cases almost daily. Therefore, plaintiff’s motion shall be denied without prejudice to

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renewal of the motion at a later stage of the proceedings.

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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

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