Tristan Allan v. Akanno

Filing 32

ORDER Denying 31 Motion to Appoint Counsel, signed by Magistrate Judge Barbara A. McAuliffe on 03/04/15. (Gonzalez, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 1:12-cv-01103-AWI-BAM (PC) TRISTAN D. ALLAN, 12 Plaintiff, 13 v. 14 ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL DR. AKANNO, 15 (ECF No. 31) Defendant. 16 17 Plaintiff Tristan D. Allan (“Plaintiff”) is a state prisoner proceeding pro se and in forma 18 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on 19 Plaintiff’s complaint against Defendant Akanno for deliberate indifference to medical needs in 20 violation of the Eighth Amendment of the United States Constitution. A jury trial is scheduled 21 for June 20, 2015. 22 On March 2, 2015, Plaintiff filed the instant motion seeking the appointment of counsel. 23 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 24 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to represent 25 Plaintiff pursuant to 28 U.S.C. ' 1915(e)(1). Mallard v. United States District Court for the 26 Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in certain 27 exceptional circumstances the court may request the voluntary assistance of counsel pursuant to 28 section 1915(e)(1). Rand, 113 F.3d at 1525. 1 1 Without a reasonable method of securing and compensating counsel, the court will seek 2 volunteer counsel only in the most serious and exceptional cases. In determining whether 3 Aexceptional circumstances exist, the district court must evaluate both the likelihood of success of 4 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 5 complexity of the legal issues involved.@ Id. (internal quotation marks and citations omitted). 6 In the present case, the court does not find the required exceptional circumstances. Even 7 if it is assumed that Plaintiff is not well versed in the law and that he has made serious allegations 8 which, if proved, would entitle him to relief, his case is not exceptional. This court is faced with 9 similar cases almost daily from indigent prisoners litigating claims of deliberate indifference to 10 serious medical needs, many of which involve expert testimony. Although this matter is 11 proceeding to trial, the court cannot make a determination that Plaintiff is likely to succeed on the 12 merits. The merits of Plaintiff’s claims were not tested by way of a summary judgment motion. 13 Moreover, based on a review of the record in this case, the court does not find that Plaintiff 14 cannot adequately articulate his claims. Id. 15 16 For the foregoing reasons, Plaintiff=s motion for the appointment of counsel is HEREBY DENIED without prejudice. 17 IT IS SO ORDERED. 18 19 Dated: /s/ Barbara March 4, 2015 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 2

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