McCoy v. Kelso, et al.

Filing 132

ORDER DENYING Plaintiff's 131 Motion to Appoint Counsel, without Prejudice signed by Magistrate Judge Stanley A. Boone on 5/8/2019. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOSEPH RAYMOND MCCOY,

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Plaintiff,
v.
STRONACH, et al.,
Defendants.

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Case No.: 1:12-cv-000983-AWI-SAB (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR APPOINTMENT OF COUNSEL,
WITHOUT PREJUDICE
[ECF No. 131]

Plaintiff Joseph Raymond McCoy is appearing pro se and in forma pauperis in this civil rights
action pursuant to 42 U.S.C. § 1983.

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Currently before the Court is Plaintiff’s motion for appointment of counsel, filed May 6, 2019.

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Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 113

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F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require any attorney to represent plaintiff

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pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern District

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

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request the voluntary assistance of counsel 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 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.

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Circumstances common to most prisoners, such as lack of legal education and limited law library

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access, do not establish exceptional circumstances that would warrant a request for voluntary

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assistance of counsel. Even if it 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 exceptional.

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Plaintiff alleges an Eighth Amendment claim against several defendants for denying him appropriate

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medical attention. The legal issues present in this action are not complex, and Plaintiff has thoroughly

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set forth his allegations in the complaint. At this time, the court cannot make a determination that

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Plaintiff is likely to succeed on the merits, and based on a review of the record in this case, the Court

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does not find that Plaintiff cannot adequately articulate his claims. Id.
While a pro se litigant may be better served with the assistance of counsel, so long as a pro se

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litigant, such as Plaintiff in this instance, is able to “articulate his claims against the relative

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

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counsel do not exist. Rand v. Rowland, 113 F.3d at 1525 (finding no abuse of discretion under 28

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U.S.C. § 1915(e) when district court denied appointment of counsel despite fact that pro se prisoner

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“may well have fared better-particularly in the realm of discovery and the securing of expert

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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 8, 2019
UNITED STATES MAGISTRATE JUDGE

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