Abercrombie v. Corcoran State Prison et al

Filing 27

ORDER DENYING Motion for Appointment of Counsel 26 , signed by Magistrate Judge Gary S. Austin on 3/27/14: Motion is DENIED without prejudice. (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 RICHARD ABERCROMBIE, 12 Plaintiff, 13 v. 14 DR. KAUT, et al., 15 1:11-cv-00048 GSA (PC) ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL (Document# 26) Defendant(s). 16 17 On March 24, 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). 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 However, in certain 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 of 27 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 this 2 stage in the proceedings, the court cannot make a determination that plaintiff is likely to succeed 3 on the merits. Plaintiff’s sole defendant has not been served and, to date, has not been located 4 after two attempts at service. While Plaintiff asserts that it is difficult for him to read, write and 5 understand material regarding his case, based on the record in this case, the court does not find 6 that plaintiff cannot adequately articulate his claims and respond to court orders. Further, the 7 legal issue in this case B whether defendant failed to provide Plaintiff with adequate medical 8 9 10 11 treatment B does not appear complex, and this court is faced with similar cases almost daily. Therefore, plaintiff=s motion shall be denied without prejudice to renewal of 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. 12 13 14 IT IS SO ORDERED. Dated: March 27, 2014 /s/ Gary S. Austin 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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