Eric Wheeler v. Aliceson et al

Filing 126

ORDER Denying 123 Motion to Appoint Counsel, signed by Magistrate Judge Michael J. Seng on 1/10/17. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ERIC WHEELER,

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Plaintiff,
v.
K. ACLISEON, et al.,

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1:12-cv-0860-LJO-MJS (PC)
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(Document# 123)

Defendant.

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On December 30, 2016, plaintiff filed a motion seeking the appointment of
counsel.

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

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

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attorney to represent plaintiff pursuant to 28 U.S.C. ' 1915(e)(1), Mallard v. United

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States District Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). In

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certain exceptional circumstances the court may request the voluntary assistance of

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counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. However, without a

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reasonable method of securing and compensating counsel, the court will seek volunteer

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counsel only in the most serious and exceptional cases. In determining whether

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Aexceptional circumstances exist, the district court must evaluate both the likelihood of

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success of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in
light of the complexity of the legal issues involved.@ Id. (internal quotation marks and
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citations 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

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has 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 stage in

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

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on the merits. Finally, the Court notes that the matter is set for a settlement conference

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on March 2, 2017, and a trial confirmation hearing on May 11, 2017. Plaintiff’s handling

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of the case to date reflects an ability to adequately articulate his claims and represent

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himself in these proceedings. Plaintiff may renew his request for counsel at or following

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the pretrial conference.

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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.

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Dated:

January 10, 2017

/s/

UNITED STATES MAGISTRATE JUDGE

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Michael J. Seng

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