Felton v. Lopez, et al.

Filing 49

ORDER denying 48 Motion to Appoint Counsel signed by Magistrate Judge Gary S. Austin on 7/24/2014. (Lundstrom, T)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KELVIN FELTON, 12 Plaintiff, 13 v. 14 J. LOPEZ, et al., 15 1:12-cv-01066 AWI GSA (PC) ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL (Document# 48) Defendants. 16 17 On July 7, 2014, plaintiff filed a motion seeking the appointment of counsel. Plaintiff 18 does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 113 19 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to represent plaintiff 20 pursuant to 28 U.S.C. ' 1915(e)(1). Mallard v. United States District Court for the Southern 21 District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). 22 exceptional circumstances the court may request the voluntary assistance of counsel pursuant to 23 section 1915(e)(1). Rand, 113 F.3d at 1525. 24 25 26 27 28 However, in certain 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 Aexceptional circumstances exist, the district court must evaluate both the likelihood of 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 citations omitted). 1 1 In the present case, the court does not find the required exceptional circumstances. At 2 this stage of the proceedings, the court cannot make a determination that plaintiff is likely to 3 succeed on the merits. While the court has found that Plaintiff states a cognizable claim for 4 excessive force, this finding is not a determination that Plaintiff is likely to succeed on the merits 5 Further, defendant Lopez has filed a motion to dismiss which may result in the dismissal of 6 7 8 9 defendant Lopez from this action. Moreover, based on the record in this case, the court does not find that plaintiff cannot adequately articulate his claims. The legal issues in this case B whether defendants used excessive force B are not complex, and this court is faced with similar cases almost daily. Plaintiff presumes that he will be unsuccessful in obtaining certain discovery materials because he is an inmate. The court finds this concern to be merely speculative at this 10 juncture, as plaintiff provides no evidence that he has attempted to obtain such materials from 11 12 13 14 defendants through discovery. Therefore, plaintiff=s motion shall be denied without prejudice to renewal of the motion at a later stage of the proceedings. For the foregoing reasons, plaintiff=s motion for the appointment of counsel is HEREBY DENIED, without prejudice. 15 16 17 18 IT IS SO ORDERED. Dated: July 24, 2014 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 2

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