Moten v. Allison

Filing 4

ORDER DENYING 3 Motion to Appoint Counsel signed by Magistrate Judge Gary S. Austin on 1/26/2012. (Marrujo, C)

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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JESSE T. MOTEN,

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1:12-cv-00034-GSA-PC

Plaintiff,
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

vs.
K. ALLISON,

( #3)
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Defendant.

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________________________________/

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On January 24, 2012, plaintiff filed a motion seeking the appointment of

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

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v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to

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represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court

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for the Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However,

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in certain exceptional circumstances the court may request the voluntary assistance of counsel

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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

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will seek volunteer counsel only in the most serious and exceptional cases. In determining

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whether “exceptional circumstances exist, the district court must evaluate both the likelihood

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

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of the complexity of the legal issues involved.” Id. (internal quotation marks and citations

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omitted).
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In the present case, the court does not find the required exceptional

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circumstances. Even if it is assumed that plaintiff is not well versed in the law and that he has

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made serious allegations which, if proved, would entitle him to relief, his case is not

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exceptional. This court is faced with similar cases almost daily. Further, at this early stage in

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the proceedings, the court cannot make a determination that plaintiff is likely to succeed on the

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

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cannot adequately articulate his claims. Id.

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For the foregoing reasons, plaintiff’s motion for the appointment of counsel is
HEREBY DENIED, without prejudice.
IT IS SO ORDERED.
Dated:
220hhe

January 26, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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