Blacher v. Johnson et al

Filing 125

ORDER DENYING Plaintiff's 123 Motion for Appoint of Pro Bono Counsel, signed by Magistrate Judge Erica P. Grosjean on 09/5/17. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARLON BLACHER,
Plaintiff,

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v.

Case No. 1:12-cv-01159-EPG (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR APPOINTMENT OF PRO BONO
COUNSEL
(ECF NO. 123)

S. JOHNSON,
Defendant.

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Marlon Blacher (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in

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this civil rights action filed pursuant to 42 U.S.C. § 1983. On September 1, 2017, Plaintiff filed

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what the Court construes as a motion for appointment of pro bono counsel. (ECF No. 123).

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Plaintiff asks for appointment of counsel because he has no formal training in the law,

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because he has limited access to the “plainly inadequate law library,” because he is unable to

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perform an adequate pre-trial investigation, because he is unable to procure and interview

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witnesses, and because he is unable to afford counsel.

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

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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds, 154 F.3d 952

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(9th Cir. 1998), and the Court cannot require an attorney to represent Plaintiff pursuant to 28
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U.S.C. ' 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa,

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490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in certain exceptional circumstances

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the Court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand,

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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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The Court will not order appointment of pro bono counsel at this time. Plaintiff’s motion

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focuses on his need for counsel because he is unable to adequate prepare for trial. However, there is a

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fully briefed dispositive motion awaiting ruling by the Court (ECF No. 106). Therefore, there may

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not be a trial in this case.

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Additionally, the Court has reviewed the record in this case, and at this time the Court cannot

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make a determination that Plaintiff is likely to succeed on the merits of his claim. Moreover, based on

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the record, it appears that Plaintiff can adequately articulate his claim and respond to Court orders.

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Plaintiff is advised that he is not precluded from renewing his motion for appointment of pro
bono counsel at a later stage of the proceedings.
For the foregoing reasons, IT IS ORDERED that Plaintiff’s motion for appointment of pro
bono counsel is DENIED without prejudice.

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IT IS SO ORDERED.
Dated:

September 5, 2017

/s/
UNITED STATES MAGISTRATE JUDGE

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