Sullivan v. Biter et.al.
Filing
52
ORDER DENYING 49 Motion for Appointment of Counsel signed by Magistrate Judge Gary S. Austin on 9/18/2014. (Sant Agata, S)
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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# 49)
Defendant.
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On September 15, 2014, 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 of
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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, 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,
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2013, for failure to state a claim, and he has not yet filed a Second Amended Complaint. (Doc.
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30.) Thus, at this juncture, there is no complaint on file upon which this case can proceed. The
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legal issue in this case B whether defendants failed to provide plaintiff with adequate medical care
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-- is not complex, and this court is faced with similar cases almost daily. Moreover, based on a
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review of the record in this case, the court does not find that plaintiff cannot adequately articulate
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his claims. Therefore, plaintiff=s motion shall be denied without prejudice to renewal of the
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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.
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Dated:
September 18, 2014
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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