Brown v. Harris et al

Filing 65

ORDER DENYING 63 Motion to Appoint Counsel signed by Magistrate Judge Gary S. Austin on 2/13/2015. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CORNELL BROWN,

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Plaintiff,
v.
R. HARRIS, et al.,

1:12-cv-01472-LJO-GSA (PC)
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(Document# 63)

Defendants.

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On February 9, 2015, plaintiff filed a 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

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of 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, plaintiff argues that he is unable to afford counsel and his
This does not make plaintiff’s case

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imprisonment will greatly limit his ability to litigate.

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exceptional. This court is faced with similar cases daily. While the court has found that “Plaintiff

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states a colorable claim for relief against Defendant Harris for excessive force in violation of the

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Eighth Amendment, and against Defendant Nelson for failure to protect Plaintiff in violation of

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the Eighth Amendment,” this finding is not a determination that plaintiff is likely to succeed on

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the merits and at this juncture, the court cannot find that Plaintiff is likely to succeed on the

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merits. Plaintiff’s claims do not appear complex, and based on a review of the record in this case,

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the court does not find that plaintiff cannot adequately articulate his claims. Thus, the court does

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not find the required exceptional circumstances, and plaintiff’s motion shall be denied without

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prejudice to renewal of the motion at a later stage of the proceedings.

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For the foregoing reasons, plaintiff=s motion for the appointment of counsel is HEREBY
DENIED, without prejudice.
IT IS SO ORDERED.

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Dated:

February 13, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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