Taylor v. Ohannesson et al

Filing 82

ORDER Denying Plaintiff's Fourth Motion For Appointment Of Counsel (ECF No. 79 ), signed by Magistrate Judge Stanley A. Boone on 3/17/2015. (Fahrney, E)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TRACY TAYLOR, 12 Plaintiff, 13 14 v. SHAYE O’HANNESON, et al., 15 Defendants. 16 Case No.: 1:11-cv-00538-SAB (PC) ORDER DENYING PLAINTIFF’S FOURTH MOTION FOR APPOINTMENT OF COUNSEL [ECF No. 79] Plaintiff Tracy Taylor is appearing pro se and in forma pauperis in this civil rights action 17 18 ) ) ) ) ) ) ) ) ) ) pursuant to 42 U.S.C. § 1983. On March 16, 2015, Plaintiff filed a motion for the appointment of counsel. (ECF No. 79.) 19 20 Plaintiff has previously requested counsel on three separate occasions, all of which were denied. (ECF 21 Nos. 25, 26, 40, 41, 43, 45.) As Plaintiff has previously been advised, there is no constitutional right to appointed counsel in 22 23 this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require any 24 attorney to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District 25 Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional 26 circumstances the court may request the voluntary assistance of counsel pursuant to section 27 1915(e)(1). Rand, 113 F.3d at 1525. 28 /// 1 Without a reasonable method of securing and compensating counsel, the court will seek 1 2 volunteer counsel only in the most serious and exceptional cases. In determining whether 3 “exceptional circumstances exist, the district court must evaluate both the likelihood of success on the 4 merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the 5 legal issues involved.” Id. (internal quotation marks and citations omitted). 6 In the present case, the Court has considered Plaintiff’s moving papers, but does not find the 7 required exceptional circumstances. LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987); Terrell v. 8 Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). Plaintiff is proceeding on a claim of excessive force and 9 the legal issues present in this action are not complex, and Plaintiff has thoroughly set forth his 10 arguments in his various filings in this action. Plaintiff’s claim that he is unable to afford legal and 11 counsel and he has been granted in forma pauper status, does not alone entitled him to appointment 12 counsel. In addition, Plaintiff’s claim of limited of access to law library does not warrant exceptional 13 circumstances. While a pro se litigant may be better serve d with the assistance of counsel, so long as a pro se 14 15 litigant, such as Plaintiff in this instance, is able to “articulate his claims against the relative 16 complexity of the matter,” the “exceptional circumstances” which might require the appointment of 17 counsel do not exist. Rand v. Rowland, 113 F.3d at 1525 (finding no abuse of discretion under 28 18 U.S.C. § 1915(e) when district court denied appointment of counsel despite fact that pro se prisoner 19 “may well have fared better-particularly in the realm of discovery and the securing of expert 20 testimony.”) Accordingly, Plaintiff motion for appointment of counsel is DENIED. 21 22 IT IS SO ORDERED. 23 Dated: 24 March 17, 2015 UNITED STATES MAGISTRATE JUDGE 25 26 27 28 2

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