Kietty v. Walker et al

Filing 71

ORDER DENYING Without Prejudice 68 Plaintiff's Third Motion to Appoint Counsel signed by Magistrate Judge Stanley A. Boone on 7/7/2016. (Jessen, A)

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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.,

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Defendants.

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Case No.: 1:13-cv-00312-DAD-SAB (PC)
ORDER DENYING, WITHOUT PREJUDICE,
PLAINTIFF’S THIRD MOTION FOR
APPOINTMENT OF COUNSEL
[ECF No. 68]

Plaintiff Hussein Ali Kietty is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.
On July 5, 2016, Plaintiff filed a third motion for the appointment of counsel. As Plaintiff was

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advised previously, Plaintiff does not have a constitutional right to appointed counsel in this action,

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

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represent 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 (1989). However, in certain exceptional circumstances

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the court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113

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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 on the
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merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the

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legal issues involved.” Id. (internal quotation marks and citations omitted).

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In the present case, the Court finds that neither the interests of justice nor exceptional

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circumstances warrant appointment of counsel at this time. LaMere v. Risley, 827 F.2d 622, 626 (9th

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Cir. 1987); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). Plaintiff is proceeding on a claim

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of excessive force and the legal issues present in this action are not complex, and Plaintiff has

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thoroughly set forth his allegations in the complaint.
While a pro se litigant may be better served with the assistance of counsel, so long as a pro se

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litigant, such as Plaintiff in this instance, is able to “articulate his claims against the relative

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complexity of the matter,” the “exceptional circumstances” which might require the appointment of

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counsel do not exist. Rand v. Rowland, 113 F.3d at 1525 (finding no abuse of discretion under 28

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U.S.C. § 1915(e) when district court denied appointment of counsel despite fact that pro se prisoner

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“may well have fared better-particularly in the realm of discovery and the securing of expert

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testimony.”) Plaintiff’s lack of education and lack of resources do not demonstrate exceptional

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circumstances. This Court is faced with cases brought by prisoners in similar circumstances almost

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daily. In addition, Plaintiff’s claim that this case will likely proceed to trial and counsel would helpful

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in litigating the case does not present an exceptional circumstance warranting appointment of counsel.

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For the foregoing reasons, Plaintiff’s third motion for the appointment of counsel is HEREBY

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DENIED, without prejudice.

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IT IS SO ORDERED.

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Dated:

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July 7, 2016
UNITED STATES MAGISTRATE JUDGE

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