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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RICHARD ABERCROMBIE,

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Plaintiff,

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v.

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DR. KAUT, et al.,

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1:11-cv-00048 GSA (PC)
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(Document# 26)

Defendant(s).

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On March 24, 2014, plaintiff filed a motion seeking the appointment of counsel. Plaintiff

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does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 113

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

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pursuant to 28 U.S.C. ' 1915(e)(1). Mallard v. United States District Court for the Southern

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

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exceptional circumstances the court may request the voluntary assistance of counsel pursuant to

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section 1915(e)(1). Rand, 113 F.3d at 1525.

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However, in certain

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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Aexceptional circumstances exist, the district court must evaluate both the likelihood of success of

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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 this

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

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on the merits. Plaintiff’s sole defendant has not been served and, to date, has not been located

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after two attempts at service. While Plaintiff asserts that it is difficult for him to read, write and

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understand material regarding his case, based on the record in this case, the court does not find

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that plaintiff cannot adequately articulate his claims and respond to court orders. Further, the

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legal issue in this case B whether defendant failed to provide Plaintiff with adequate medical

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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.

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IT IS SO ORDERED.
Dated:

March 27, 2014

/s/ Gary S. Austin

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UNITED STATES MAGISTRATE JUDGE

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