Jackson v. Yates et al

Filing 150

ORDER Denying 149 Motion for Appointment of Counsel, signed by Magistrate Judge Barbara A. McAuliffe on 03/02/15. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CURTIS RENEE JACKSON,

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Plaintiff,
v.
Y.A. YATES, et al.,

1:11-cv-00080-LJO-BAM (PC)
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(ECF No. 149)

Defendant.

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Plaintiff Curtis Renee Jackson (“Plaintiff”) is a state prisoner proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on

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Plaintiff’s claim that Defendant Mendez used excessive force in violation of the Eighth

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Amendment by dumping Plaintiff from his wheelchair and dragging him on the concrete floor

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and Plaintiff’s claim that Defendants Samonte, Daley, Nichols, Gonzales and Valdez violated his

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Eighth Amendment rights by failing to intervene in the alleged use of excessive force by

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Defendant Mendez. This action is scheduled for jury trial on August 18, 2015.

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On February 25, 2015, 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. Rowland,

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

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

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Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in certain
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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.
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).
Here, Plaintiff asserts that he is indigent and his imprisonment limits his ability to litigate

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this action. Plaintiff also asserts that he is a paraplegic taking pain medication and his injury
prohibits him from remaining in a sitting position for over an hour.
The Court has considered Plaintiff’s moving papers, but does not find the required

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exceptional circumstances. This Court is faced with similar cases almost daily from indigent

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prisoners. Plaintiff’s inability to sit for more than one hour will not be alleviated by the

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appointment of counsel and, as appropriate and necessary, Plaintiff will be provided with breaks

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during the course of trial. Further, although this matter is proceeding to trial, the Court cannot

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make a determination that Plaintiff is likely to succeed on the merits, and based on a review of the

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record in this case, the Court does not find that Plaintiff cannot adequately articulate his claims.

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Id.
For the foregoing reasons, Plaintiff=s motion for the appointment of counsel is HEREBY
DENIED without prejudice.
IT IS SO ORDERED.

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Dated:

/s/ Barbara

March 2, 2015

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE
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