McCoy v. Kelso, et al.

Filing 143

ORDER DENYING 142 Plaintiff's Fifth Motion to Appoint Counsel signed by Magistrate Judge Stanley A. Boone on 6/17/2019. (Jessen, A)

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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 Plaintiff, 13 14 v. STRONACH, et al., 15 Defendants. 16 ORDER DENYING PLAINTIFF’S FIFTH MOTION FOR APPOINTMENT OF COUNSEL, WITHOUT PREJUDICE [ECF No. 142] action pursuant to 42 U.S.C. § 1983. Currently before the Court is Plaintiff’s fifth motion for appointment of counsel, filed June 14, 19 20 Case No.: 1:12-cv-000983-AWI-SAB (PC) Plaintiff Joseph Raymond McCoy is appearing pro se and in forma pauperis in this civil rights 17 18 ) ) ) ) ) ) ) ) ) ) 2019. 21 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 22 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require any attorney to represent 23 plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern 24 District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the court 25 may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 26 1525. 27 28 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 1 1 “exceptional circumstances exist, the district court must evaluate both the likelihood of success on the 2 merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the 3 legal issues involved.” Id. (internal quotation marks and citations omitted). 4 In the present case, the Court does not find the required exceptional circumstances. 5 Circumstances common to most prisoners, such as lack of legal education and limited law library 6 access, do not establish exceptional circumstances that would warrant a request for voluntary 7 assistance of counsel. Even if it assumed that Plaintiff is not well versed in the law and that he has 8 made serious allegations which, if proved, would entitle him to relief, his case is not exceptional. 9 Plaintiff alleges an Eighth Amendment claim against several defendants for denying him appropriate 10 medical attention. The legal issues present in this action are not complex, and Plaintiff has thoroughly 11 set forth his allegations in the complaint. At this time, the Court cannot make a determination that 12 Plaintiff is likely to succeed on the merits, and based on a review of the record in this case, the Court 13 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 14 15 litigant, such as Plaintiff in this instance, is able to “articulate his claims against the relative 16 complexity of the matter,” the “exceptional circumstances” which might require the appointment of 17 counsel do not exist. Rand v. Rowland, 113 F.3d at 1525 (finding no abuse of discretion under 28 18 U.S.C. § 1915(e) when district court denied appointment of counsel despite fact that pro se prisoner 19 “may well have fared better-particularly in the realm of discovery and the securing of expert 20 testimony.”) For the foregoing reasons, Plaintiff’s fifth motion for the appointment of counsel is HEREBY 21 22 DENIED, without prejudice. 23 24 25 IT IS SO ORDERED. 26 Dated: 27 June 17, 2019 UNITED STATES MAGISTRATE JUDGE 28 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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