Shepard v. Cohen et al

Filing 16

ORDER DENYING 15 Motion to Appoint Counsel signed by Magistrate Judge Gary S. Austin on 12/19/2013. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LAMONT SHEPARD,

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Plaintiff,
v.

1:11-cv-00535-GSA (PC)
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(Document# 15)

COHEN, et al.,
Defendants.

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On December 13, 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. 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.

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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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Aexceptional 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 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. Service of process upon the defendants has not been completed, and none of the

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defendants have appeared in the case. Based on the record in this case, the court does not find

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that plaintiff cannot adequately articulate his claims. Further, the legal issues in this case B

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whether defendants used excessive force and violated plaintiff’s rights to due process B are not

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complex, and this court is faced with similar cases almost daily. Therefore, plaintiff=s motion

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shall be denied without prejudice to 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.

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IT IS SO ORDERED.
Dated:

December 19, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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