Shepard v. Cohen et al

Filing 37

ORDER Denying 36 Motion to Appoint Counsel, signed by Magistrate Judge Gary S. Austin on 4/17/14. (Verduzco, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

LAMONT SHEPARD,

12
13
14
15

Plaintiff,
v.

1:11-cv-00535-GSA (PC)
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(Document# 36)

COHEN, et al.,
Defendant.

16
17

On April 14, 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

27

of 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, Plaintiff argues that he is unable to afford counsel and only completed

2

the ninth grade in school. Plaintiff also argues that an attorney would be more capable than

3

Plaintiff to locate defendant Cohen, because Plaintiff is confined in a cell twenty-three hours a

4

day, unable to do any leg work on his own.

5

Plaintiff has not shown exceptional circumstances. The court denied Plaintiff’s prior

6

motion for counsel less than a month ago, and Plaintiff’s circumstances have not changed.

7

Plaintiff provides documentary evidence that he received a TABE Score of 7.4 in June 2008,

8

without any explanation of the meaning of the score. (Doc. 36 at 2.) The case is presently in the

9

discovery phase, and one of the four defendants has not been served. Plaintiff argues that he

10

needs an attorney to find the defendant who has not been served; however, at this juncture, the

11

Marshal has not reported that the defendant cannot be found. Plaintiff’s claim for due process

12

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

13
14
15
16
17
18
19

responsive, adequately communicates, and is able to articulate his claims. At this stage in the
proceedings, the court cannot make a determination that Plaintiff is likely to succeed on the
merits. 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.
IT IS SO ORDERED.

20
21

Dated:

April 17, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

22
23
24
25
26
27
28

2