Tucker v. Cline, et al.

Filing 16

ORDER DENYING Motions to Appoint Counsel 12 , 15 , signed by Magistrate Judge Barbara A. McAuliffe on 4/29/13: Motions are DENIED without prejudice. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GERALD L. TUCKER,

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Plaintiff,

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v.

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PHILLIP J. CLINE, et al.,

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Defendants.

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Case No.: 1:13-cv-00400-BAM PC
ORDER DENYING MOTIONS TO APPOINT
COUNSEL
(ECF Nos. 12, 15)

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On April 17, 2013, plaintiff filed a motion seeking the appointment of counsel. (ECF No. 12.)

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On April 22, 2013, plaintiff filed a second motion seeking the appointment of counsel. (ECF No. 17.)

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Plaintiff 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 District

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of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (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.

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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 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 does not find the required exceptional circumstances. Even if it is

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assumed that plaintiff is not well versed in the law and that he has made serious allegations which, if

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proved, would entitle him to relief, his case is not exceptional. This court is faced with similar cases

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almost daily. Further, at this early stage in the proceedings, the court cannot make a determination

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that plaintiff is likely to succeed on the merits, and based on a review of the record in this case, the

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court does not find that plaintiff cannot adequately articulate his claims. Id.

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For the foregoing reasons, plaintiff’s motions for the appointment of counsel are HEREBY
DENIED without prejudice.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

April 29, 2013

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UNITED STATES MAGISTRATE JUDGE
DEAC_Signature-END:

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A. McAuliffe

10c20kb8554

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