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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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1:12-cv-01103-AWI-BAM (PC)

TRISTAN D. ALLAN,

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Plaintiff,

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v.

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ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

DR. AKANNO,

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(ECF No. 31)
Defendant.

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Plaintiff Tristan D. Allan (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on

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Plaintiff’s complaint against Defendant Akanno for deliberate indifference to medical needs in

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violation of the Eighth Amendment of the United States Constitution. A jury trial is scheduled

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for June 20, 2015.

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On March 2, 2015, Plaintiff filed the instant motion seeking the appointment of counsel.

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

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

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

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Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in certain

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exceptional circumstances the court may request the voluntary assistance of counsel pursuant to

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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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Aexceptional circumstances exist, the district court must evaluate both the likelihood of success of

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the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the

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complexity of the 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. Even

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if it is assumed that Plaintiff is not well versed in the law and that he has made serious allegations

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which, if proved, would entitle him to relief, his case is not exceptional. This court is faced with

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similar cases almost daily from indigent prisoners litigating claims of deliberate indifference to

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serious medical needs, many of which involve expert testimony. Although this matter is

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proceeding to trial, the court cannot make a determination that Plaintiff is likely to succeed on the

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merits. The merits of Plaintiff’s claims were not tested by way of a summary judgment motion.

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Moreover, based on a review of the record in this case, the court does not find that Plaintiff

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cannot adequately articulate his claims. Id.

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For the foregoing reasons, Plaintiff=s motion for the appointment of counsel is HEREBY
DENIED without prejudice.

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IT IS SO ORDERED.
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Dated:

/s/ Barbara

March 4, 2015

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE
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