Sullivan v. Biter et.al.

Filing 42

ORDER Denying 38 Motion to Appoint Counsel, signed by Magistrate Judge Gary S. Austin on 3/14/14. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MICHAEL J. SULLIVAN,

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Plaintiff,

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v.
M.D. BITER, et al.,

1:12-cv-01662-AWI-GSA (PC)
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(Document #38)

Defendant.

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On March 3, 2014, 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
volunteer counsel only in the most serious and exceptional cases.

In determining whether

Aexceptional circumstances exist, the district court must evaluate both the likelihood of success
of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the
complexity of the legal issues involved.@ Id. (internal quotation marks and citations omitted).
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In the present case, the court does not find the required exceptional circumstances. At this

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early stage in the proceedings, the court cannot make a determination that plaintiff is likely to

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succeed on the merits. Plaintiff=s first amended complaint was dismissed on September 16, 2003,

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for failure to state a claim, with leave to amend, and Plaintiff has not filed the second amended

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complaint. (Doc. 30.) No other parties have yet appeared. Moreover, based on a review of the

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record in this case, the court finds that plaintiff is responsive, adequately communicates, and is
able to articulate his claims. See First Amended Complaint, Doc. 28. Therefore, 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

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DENIED, without prejudice.
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IT IS SO ORDERED.
Dated:

March 14, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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