Sullivan v. Biter et.al.

Filing 81

ORDER DENYING 80 Motion to Appoint Counsel signed by Magistrate Judge Erica P. Grosjean on 1/10/2017. (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.

Case No. 1:12-cv-01662-AWI-EPG (PC)
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(ECF No. 80)

BITER, et al.,
Defendant.

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On January 6, 2017, 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). 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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“exceptional 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. The

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mere fact that Plaintiff is unable to locate one of the defendants at this stage in the litigation does

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not justify the appointment of counsel; Plaintiff will have adequate opportunities to identify any

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missing defendants later in this litigation. Further, at this early stage in the proceedings, the court

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cannot make a determination that plaintiff is likely to succeed on the merits, and 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. Id.

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For the foregoing reasons, plaintiff=s motion for the appointment of counsel is DENIED
without prejudice.

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IT IS SO ORDERED.
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Dated:

January 10, 2017

/s/
UNITED STATES MAGISTRATE JUDGE

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