Brown v. Harris et al

Filing 60

ORDER DENYING Motion for Appointment of Counsel 59 , signed by Magistrate Judge Gary S. Austin on 9/4/14. (Hellings, J)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CORNELL BROWN, 12 13 14 15 Plaintiff, v. R. HARRIS, et al., 1:12-cv-01472 LJO-GSA (PC) ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL (Document# 59) Defendants. 16 17 On August 25, 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 However, in certain Without a reasonable method of securing and compensating counsel, the court will seek 25 volunteer counsel only in the most serious and exceptional cases. In determining whether 26 Aexceptional circumstances exist, the district court must evaluate both the likelihood of success of 27 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 28 complexity of the legal issues involved.@ Id. (internal quotation marks and citations omitted). 1 1 In the present case, Plaintiff argues that he is unable to afford counsel and his 2 imprisonment will greatly limit his ability to litigate. Plaintiff asserts that he has limited access to 3 the law library and limited knowledge of the law. Plaintiff also asserts that he is at the “E.O.P. 4 Level of [Mental Health] Care, PSU, SAC. A.” Motion, Doc. 59 at 2 ¶2. 5 Plaintiff does not explain the meaning of the “E.O.P. Level” of mental health care he 6 describes. Even so, plaintiff’s challenges do not make his case exceptional, and this court is faced 7 with similar cases daily. While the court has found that plaintiff “states a colorable claim for 8 relief against Defendant Harris for excessive force in violation of the Eighth Amendment, and 9 against Defendant Nelson for failure to protect Plaintiff in violation of the Eighth Amendment,” 10 this finding is not a determination that plaintiff is likely to succeed on the merits and at this 11 juncture, the court cannot find that plaintiff is likely to succeed on the merits. Order, Doc. 6 at 12 2:17-19. Plaintiff’s claims for excessive force and failure to protect him do not appear complex, 13 14 15 16 17 18 19 and based on a review of the record in this case, the court does not find that plaintiff cannot adequately articulate his claims. Thus, the court does not find the required exceptional circumstances, and 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. IT IS SO ORDERED. 20 Dated: 21 September 4, 2014 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 2

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