Taylor v. Ohannesson et al

Filing 45

ORDER DENYING Plaintiff's Third Motion for Appointment of Counsel, Without Prejudice 43 , signed by Magistrate Judge Stanley A. Boone on 5/6/14. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TRACY TAYLOR,

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Plaintiff,
v.
SHAYE O’HANNESON, et al.,
Defendants.

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Case No.: 1:11-cv-00538-LJO-SAB (PC)
ORDER DENYING PLAINTIFF’S
THIRD MOTION FOR APPOINTMENT
OF COUNSEL, WITHOUT PREJUDICE
[ECF No. 43]

Plaintiff Tracy Taylor is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.
Now pending before the Court is Plaintiff’s third motion for the appointment of counsel, filed

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May 5, 2014. (ECF No. 43.) Plaintiff previously filed two motions for the appointment of counsel,

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both were denied as the Court found neither the interests of justice nor exceptional circumstances to

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warranted the appointment of counsel in this case. (ECF Nos. 26, 41.)

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This action is proceeding against Defendants Shaye O’Hanneson, Rene Duran, and Howard

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Smith for excessive force in violation of the Eighth Amendment. Defendants filed an answer to the

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complaint on November 12, 2013. On November 22, 2013, the Court issued a discovery and

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scheduling order, setting the discovery deadline cut-off date of July 22, 2014, and the dispositive

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motion deadline of October 2, 2014. (ECF No. 36.)

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In the present motion for appointment of counsel, Plaintiff contends that he “has come across

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a particular problem that he cannot handle by himself.” (ECF No. 43, at 1.) Plaintiff submits that

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“evidence exist[s] that will prove each element of Plaintiff[’s] claim but he is unable to obtain the

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evidence because it is beyond his capabilities to do so.” (Id. at 2.) Plaintiff references a videotape

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interview of himself and a copy of the trial transcripts of the criminal proceedings in the Kern County

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Superior Court in which Defendants O’Hanneson and Duran testified against Plaintiff.

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There is no constitutional right to appointed counsel in this action, Rand v. Rowland, 113 F.3d

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1520, 1525 (9th Cir. 1997), and the court cannot require any attorney to represent plaintiff pursuant to

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28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa, 490

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U.S. 296, 298 (1989). However, in certain exceptional circumstances the court may request the

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voluntary assistance of counsel pursuant to 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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“exceptional circumstances exist, the district court must evaluate both the likelihood of success on the

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merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the

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legal issues involved.” Id. (internal quotation marks and citations omitted).

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In the present case, the Court does find that neither the interests of justice nor exceptional

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circumstances warrant appointment of counsel at this time. LaMere v. Risley, 827 F.2d 622, 626 (9th

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Cir. 1987); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). The Court previously denied

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Plaintiff’s requests and nothing has substantially changed in this case since that time to change the

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Court’s analysis. Plaintiff is proceeding on a claim of excessive force and the legal issues present in

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this action are not complex, and Plaintiff has thoroughly set forth his allegations in the complaint.

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While a pro se litigant may be better served with the assistance of counsel, so long as a pro se

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litigant, such as Plaintiff in this instance, is able to “articulate his claims against the relative

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complexity of the matter,” the “exceptional circumstances” which might require the appointment of

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counsel do not exist. Rand v. Rowland, 113 F.3d at 1525 (finding no abuse of discretion under 28

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U.S.C. § 1915(e) when district court denied appointment of counsel despite fact that pro se prisoner

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“may well have fared better-particularly in the realm of discovery and the securing of expert
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testimony.”) Thus, the Court finds that Plaintiff’s arguments, without supporting documentation,

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regarding his ability to obtain discovery are not exceptional circumstances warranting the appointment

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of counsel at this time. Accordingly, Plaintiff motion for appointment of counsel is DENIED, without

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prejudice.

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IT IS SO ORDERED.
Dated:

May 6, 2014
UNITED STATES MAGISTRATE JUDGE

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