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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOSEPH RAYMOND MCCOY, 12 13 14 15 Plaintiff, v. STRONACH, et al., Defendants. 16 17 18 ) ) ) ) ) ) ) ) ) ) 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. 19 Currently before the Court is Plaintiff’s motion for appointment of counsel, filed May 6, 2019. 20 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 113 21 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require any attorney to represent plaintiff 22 pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern District 23 of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the court may 24 request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. 25 Without a reasonable method of securing and compensating counsel, the court will seek 26 volunteer counsel only in the most serious and exceptional cases. In determining whether 27 “exceptional circumstances exist, the district court must evaluate both the likelihood of success on the 28 1 1 merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the 2 legal issues involved.” Id. (internal quotation marks and citations omitted). 3 In the present case, the Court does not find the required exceptional circumstances. 4 Circumstances common to most prisoners, such as lack of legal education and limited law library 5 access, do not establish exceptional circumstances that would warrant a request for voluntary 6 assistance of counsel. Even if it assumed that Plaintiff is not well versed in the law and that he has 7 made serious allegations which, if proved, would entitle him to relief, his case is not exceptional. 8 Plaintiff alleges an Eighth Amendment claim against several defendants for denying him appropriate 9 medical attention. The legal issues present in this action are not complex, and Plaintiff has thoroughly 10 set forth his allegations in the complaint. At this time, the court cannot make a determination that 11 Plaintiff is likely to succeed on the merits, and based on a review of the record in this case, the Court 12 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 13 14 litigant, such as Plaintiff in this instance, is able to “articulate his claims against the relative 15 complexity of the matter,” the “exceptional circumstances” which might require the appointment of 16 counsel do not exist. Rand v. Rowland, 113 F.3d at 1525 (finding no abuse of discretion under 28 17 U.S.C. § 1915(e) when district court denied appointment of counsel despite fact that pro se prisoner 18 “may well have fared better-particularly in the realm of discovery and the securing of expert 19 testimony.”) For the foregoing reasons, Plaintiff’s motion for the appointment of counsel is HEREBY 20 21 DENIED, without prejudice. 22 23 IT IS SO ORDERED. 24 Dated: 25 May 8, 2019 UNITED STATES MAGISTRATE JUDGE 26 27 28 2

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