Brown v. Harris et al

Filing 69

ORDER DENYING 67 Motion to Appoint Counsel signed by Magistrate Judge Gary S. Austin on 4/2/2015. (Sant Agata, S)

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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# 67)

Defendants.

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On March 26, 2015, Plaintiff filed a motion seeking the appointment of counsel. Plaintiff

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does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 113

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

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

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

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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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However, in certain

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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Plaintiff’s prior motion for appointment of counsel was filed on February 9, 2015 and denied

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by the court on February 13, 2015, less than two months ago. (Docs. 63, 65.) Plaintiff again argues

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that he is unable to afford counsel and that his imprisonment will greatly limit his ability to litigate.

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Plaintiff argues that he expects to need assistance at trial and to secure expert witnesses, and that he is

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a layman at law with mental health needs and cannot proceed effectively without assistance. This

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does not make plaintiff’s case exceptional. This court is faced with similar cases daily. While the

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court has found that “Plaintiff states a colorable claim for relief against Defendant Harris for

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excessive force in violation of the Eighth Amendment, and against Defendant Nelson for failure to

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protect Plaintiff in violation of the Eighth Amendment,” this finding is not a determination that

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

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likely to succeed on the merits. Plaintiff’s claims do not appear complex, and based on a review of the

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record in this case, the court does not find that Plaintiff cannot adequately articulate his claims. Thus,

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the court does not find the required exceptional circumstances, and Plaintiff’s motion shall be denied

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without 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.

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IT IS SO ORDERED.
Dated:

April 2, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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