Shepard v. Cohen et al

Filing 35

ORDER Denying 34 Motion to Appoint Counsel signed by Magistrate Judge Gary S. Austin on 04/03/2014. (Flores, E)

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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.
DR. COHEN, et al.,

1:11-cv-00535-GSA (PC)
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(Document# 34)

Defendants.

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On March 26, 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). 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, Plaintiff argues that he is unable to afford counsel, his imprisonment

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will greatly limit his ability to litigate, and he only completed his education through the eighth

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grade. This does not make Plaintiff’s case exceptional. This court is faced with similar cases

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daily.

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The court denied Plaintiff’s prior motion for appointment of counsel less than a month

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ago, and Plaintiff’s circumstances have not changed. Plaintiff again argues that he “only has a 7.6

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G.P.A.,” without explanation of the meaning of this measurement or why it entitles him to

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appointment of counsel. (Motion at 1:23-24.) The case is presently in the discovery phase, and

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one of the four defendants has not been served.

Plaintiff’s claim for due process may be

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challenging; however, a review of the record in this case shows that Plaintiff is responsive,

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adequately communicates, and is able to articulate his claims. At this stage in the proceedings,

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the court cannot make a determination that Plaintiff is likely to succeed on the merits. Therefore,

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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.
IT IS SO ORDERED.

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Dated:

April 3, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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