Calloway v. Kelley et al

Filing 54

ORDER Denying Plaintiff's Motion for Appointmnet of Counsel and Expert Witness (ECF No. 53 ), signed by Magistrate Judge Stanley A. Boone on 3/18/2014. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMISI JERMAINE CALLOWAY,

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Plaintiff,

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v.
G. KELLEY, et al.,

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Defendants.

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ORDER DENYING PLAINTIFF’S MOTION FOR
APPOINTMENT OF COUNSEL AND EXPERT
WITNESS
[ECF No. 53]

action pursuant to 42 U.S.C. § 1983.
Now pending before the Court is Plaintiff’s motion for appointment of counsel, or in the

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Case No.: 1:11-cv-01090-SAB (PC)

Plaintiff Jamisi Jermaine Calloway is appearing pro se and in forma pauperis in this civil rights

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alternative appointment of an expert witness.

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I.

Motion Appointment of Counsel

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Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v.

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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require any 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 Southern

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District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the court

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may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at

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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 not find the required exceptional circumstances. Even if it

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assumed that plaintiff is not well versed in the law and that he has made serious allegations which, if

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proved, would entitle him to relief, his case is not exceptional. Plaintiff alleges a claim of retaliation

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for exercising his First Amendment rights. The legal issues present in this action are not complex, and

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at this stage in the proceedings, the Court cannot make a determination that Plaintiff is likely to

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succeed on the merits, and based on a review of the record in this case, the court does not find that

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plaintiff cannot adequately articulate his claims. Id. Accordingly, Plaintiff motion for the

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appointment of counsel shall be denied without prejudice.

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II.

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Plaintiff seeks the appointment of an expert witness if the Court finds appointment of counsel

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Motion Appoint of Expert Witness

is not warranted.
“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand

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the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill,

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experience, training, or education, may testify thereto in the form of an opinion or otherwise,” Fed. R.

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Evid. 702, and the Court has the discretion to appoint an expert and to apportion costs, including the

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appointment of costs to one side, Fed. R. Evid. 706; Ford ex rel. Ford v. Long Beach Unified School

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Dist., 291 F.3d 1086, 1090 (9th Cir. 2002); Walker v. American Home Shield Long Term Disability

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Plan, 180 F.3d 1065, 1071 (9th Cir. 1999). However, at this stage in the proceedings, there are no

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pending matters in which the Court requires special assistance, Ford ex rel Ford, 291 F.3d at 1090;

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Walker, 180 F.3d at 1071, and Plaintiff’s pro se, in forma pauperis status alone is not grounds for the

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appointment of an expert witness to assist Plaintiff with his case. Accordingly, Plaintiff’s motion for

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appointment of an expert witness is DENIED without prejudice.

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Based on the foregoing, Plaintiff’s motion for appointment of counsel and expert witness is
DENIED without prejudice.

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IT IS SO ORDERED.
Dated:

March 18, 2014
UNITED STATES MAGISTRATE JUDGE

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