Herrera v. Rouch

Filing 22

ORDER DENYING 21 Motion to Appoint Counsel signed by Magistrate Judge Michael J. Seng on 10/10/2013. (Sant Agata, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERTO HERRERA, 12 Plaintiff, 13 ORDER DENYING MOTION APPOINTMENT OF COUNSEL FOR v. 14 CASE No. 1:13-cv-00289-LJO-MJS ROUCH, (ECF No. 21) 15 Defendant. 16 17 Plaintiff Roberto Herrera is a state prisoner proceeding pro se and in forma 18 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. (ECF No. 1.) On 19 September 20, 2013, Plaintiff filed a motion seeking the appointment of counsel.1 (ECF 20 No. 21.) 21 Plaintiff does not have a constitutional right to appointed counsel in this action, 22 Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (partially overruled en banc on 23 other grounds, 154 F.3d 952, 954 n. 1 (9th Cir. 1998)), and the Court cannot require an 24 attorney to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United 25 States District Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). In certain exceptional circumstances the Court may request the voluntary 26 27 1 28 Plaintiff concurrently filed a request for a preliminary injunction. That request is addressed in a separate order. 1 1 assistance of counsel pursuant to section 1915(e)(1). 2 However, without a reasonable method of securing and compensating counsel, the 3 Court will seek volunteer counsel only in the most serious and exceptional cases. In 4 determining whether “exceptional circumstances exist, the district court must evaluate 5 both the likelihood of success of the merits [and] the ability of the [plaintiff] to articulate 6 his claims pro se in light of the complexity of the legal issues involved.” Id. (internal 7 quotation marks and citations omitted). Rand, 113 F.3d at 1525. 8 In the present case, the Court does not find the required exceptional 9 circumstances. Even if it is assumed that Plaintiff is not well versed in the law and that 10 he has made serious allegations which, if proved, would entitle him to relief, his case is 11 not exceptional. This Court is faced with similar cases almost daily. Further, at this early 12 stage in the proceedings, the Court cannot make a determination that Plaintiff is likely to 13 succeed on the merits, and based on a review of the record in this case, the Court does 14 not find that Plaintiff cannot adequately articulate his claims. Id. For the foregoing reasons, Plaintiff’s Motion for Appointment of Counsel is 15 16 DENIED, without prejudice. 17 18 19 IT IS SO ORDERED. 20 Dated: October 10, 2013 /s/ 21 UNITED STATES MAGISTRATE JUDGE DEAC_Signature-END: 22 Michael J. Seng ci4d6 23 24 25 26 27 28 2

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