Vella v. Clark, et al.

Filing 43

ORDER DENYING 41 Plaintiff's Second Motion to Appoint Counsel signed by Magistrate Judge Stanley A. Boone on 4/17/2015. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOHN ANTHONY VELLA,

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Plaintiff,
v.
EDGAR CLARK, et al.,

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Defendants.

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Case No.: 1:12-cv-01402-SAB (PC)
ORDER DENYING PLAINTIFF’S SECOND
MOTION FOR APPOINTMENT OF COUNSEL
[ECF No. 23]

Plaintiff John Anthony Vella is appearing pro se and in forma pauperis in this civil rights
action pursuant to 42 U.S.C. § 1983.
On April 16, 2015, Plaintiff filed a second motion for the appointment of counsel. The Court

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previously denied Plaintiff’s request for counsel finding no exceptional circumstances. (ECF No. 23.)

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As previously advised, Plaintiff does not have a constitutional right to appointed counsel in this action,

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Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require any attorney to

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represent 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 (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, 113

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F.3d at 1525.

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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
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“exceptional circumstances exist, the district court must evaluate both the likelihood of success on the

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

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legal issues involved.” Id. (internal quotation marks and citations omitted).
Plaintiff requests appointment of counsel because he is indigent, has limited access to the law

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library, has limited experience, and the issues involved in the case are complex.
Here, the Court finds that the Plaintiff has not established either the likelihood of success on

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the merits or an inability to articulate his claims. Even if it assumed that plaintiff is not well versed in

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the law and that he has made serious allegations which, if proved, would entitle him to relief, his case

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is not exceptional. Plaintiff alleges an Eighth Amendment claim against several defendants for

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denying him appropriate medical attention. The legal issues present in this action are not complex,

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and Plaintiff has thoroughly set forth his allegations in the complaint. Further, the hardships faced by

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Plaintiff due to incarceration such as limited access to the law library does not establish exceptional

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circumstances. Indeed, the reasons set forth by Plaintiff are indistinguishable from the reasons

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asserted by most incarcerated plaintiffs. The fact that a pro se litigant would be better served with the

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assistance of counsel, does not qualify as exceptional circumstances to warrant counsel. Rand, 113

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F.3d 1520, 1525 (9th Cir. 1997). Accordingly, Plaintiff second motion for appointment of counsel is

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DENIED, without prejudice.

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IT IS SO ORDERED.

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Dated:

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April 17, 2015
UNITED STATES MAGISTRATE JUDGE

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