Kietty v. Walker et al

Filing 121

ORDER DENYING Plaintiff's 120 Fifth Motion to Appoint Counsel signed by Magistrate Judge Stanley A. Boone on 6/28/17. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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HUSSEIN ALI KIETTY,

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Plaintiff,
v.
A. WALKER, et al.,
Defendants.

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Case No.: 1:13-cv-00312-SAB (PC)
ORDER DENYING PLAINTIFF’S FIFTH
MOTION FOR APPOINTMENT OF COUNSEL
[ECF No. 120]

Plaintiff Hussein Ali Kietty is appearing pro se and in forma pauperis in this civil rights action

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pursuant to 42 U.S.C. § 1983. Pursuant to 28 U.S.C. § 636(c), the parties have consented to the

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jurisdiction of the United States Magistrate Judge. Local Rule 302.

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Currently before the Court is Plaintiff’s fifth motion for appointment of counsel, filed June 26,

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2017. Plaintiff requests appointment of counsel because he is indigent, has limited access to the law

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library, and trial in this action will likely involve conflicting testimony.

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As Plaintiff is well aware, he does not have a constitutional right to appointed counsel in this

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action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require any

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attorney to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District

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Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional

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circumstances the Court may request the voluntary assistance of counsel pursuant to section

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1915(e)(1). Rand, 113 F.3d at 1525. Without a reasonable method of securing and compensating

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counsel, the Court will seek volunteer counsel only in the most serious and exceptional cases. In

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determining whether “exceptional circumstances exist, the district court must evaluate both the

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likelihood of success on the merits [and] the ability of the [plaintiff] to articulate his claims pro se in
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light of the complexity of the legal issues involved.” Id. (internal quotation marks and citations

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omitted).
The test for exceptional circumstances requires the Court to evaluate the Plaintiff’s likelihood

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of success on 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. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir.

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1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances common to most

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prisoners, such as lack of legal education and limited law library access, do not establish exceptional

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circumstances that would warrant a request for voluntary assistance of counsel. Furthermore, the fact

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that Plaintiff is proceeding in forma pauperis does not entitle him to counsel. While a prose litigant

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may be better served with the assistance of counsel, so long as a pro se litigant, such as Plaintiff in this

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instance, is able to “articulate his claims against the relative complexity of the matter,” the

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“exceptional circumstances” which might require the appointment of counsel do not exist. Rand, 113

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F.3d at 1525 (finding no abuse of discretion under 28 U.S.C. § 1915(e) when district court denied

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appointment of counsel despite fact that pro se prisoner “may well have fared better – particularly in

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the realm of discovery and the security of expert testimony.”) In sum, the Court finds Plaintiff’s

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reasons for requesting appointment of counsel indistinguishable from the reasons asserted by most

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prisoners. Accordingly, Plaintiff’s fifth motion for the appointment of counsel is DENIED, for the

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reasons explained herein.

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IT IS SO ORDERED.

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Dated:

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June 28, 2017
UNITED STATES MAGISTRATE JUDGE

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