Nuriddin v. Estrella et al

Filing 49

ORDER Denying 47 Motion to Appoint Counsel, signed by Magistrate Judge Stanley A. Boone on 5/18/15. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MUHAMMAD NURIDDIN,

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Plaintiff,

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v.
ESTRELLA, et al.,

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Defendants.

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Case No.: 1:11-cv-01448-LJO-SAB (PC)
ORDER DENYING, WITHOUT PREJUDICE,
PLAINTIFF’S MOTION FOR APPOINTMENT
OF COUNSEL
[ECF No. 47]

Plaintiff Muhammad Nuriddin is appearing pro se and in forma pauperis in this civil rights

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action pursuant to Bivens v. Six Unknown Agents, 403 U.S. 388 (1971). Bivens actions and actions

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under 42 U.S.C. § 1983 “are identical save for the replacement of a state actor under § 1983 by a

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federal actor under Bivens.” Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991).

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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
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. This action is proceeding on Plaintiff’s

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claim of retaliation. The legal issues present in this action are not complex, and Plaintiff has

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thoroughly litigated this action to date. While a pro se litigant may be better served with the assistance

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of counsel, so long as a pro se litigant, such as Plaintiff in this instance, is able to “articulate his claims

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

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

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discretion under 28 U.S.C. § 1915(e) when district court denied appointment of counsel despite fact

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that pro se prisoner “may well have fared better-particularly in the realm of discovery and the securing

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of expert testimony.”)
For the foregoing reasons, Plaintiff’s motion for the appointment of counsel is HEREBY

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DENIED, without prejudice.

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IT IS SO ORDERED.

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Dated:

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May 18, 2015
UNITED STATES MAGISTRATE JUDGE

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