Vanderwerff v. Allison et al

Filing 22

ORDER DENYING 21 Motion to Appoint Counsel signed by Magistrate Judge Barbara A. McAuliffe on 9/8/2014. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CHRISTOPHER EVAN
VANDERWERFF,
Plaintiff,

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v.

1:13-cv-00521-LJO-BAM (PC)
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(ECF No. 21)

K. ALLISON, et al.,
Defendant.
Plaintiff Christopher Evan Vanderwerff (“Plaintiff”) is a state prisoner proceeding pro se
and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

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On September 5, 2014, Plaintiff filed the instant motion seeking the appointment of

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counsel. Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v.

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

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represent plaintiff pursuant to 28 U.S.C. ' 1915(e)(1). Mallard v. United States District Court for

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the Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in

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certain exceptional circumstances the court may request the voluntary assistance of counsel

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pursuant to 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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Aexceptional circumstances exist, the district court must evaluate both the likelihood of success on
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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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Plaintiff seeks the appointment of counsel based on his current medical condition.

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According to Plaintiff’s declaration, he underwent emergency care for his hand and arm on

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August 21, 2014. The examining physician indicated that additional surgery is necessary and he

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should not remove the bandages. Plaintiff contends that due to the ongoing condition of his hand

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and arm, including infections, swellings and pain, he is unable to amend his complaint without

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the assistance of counsel. (ECF No. 21, Pl’s Dec. ¶¶ 3-6.)

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Although Plaintiff has identified an ongoing medical condition, the Court does not find

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the required exceptional circumstances. First, Plaintiff has not provided any evidentiary support

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for his allegations. Second, Plaintiff has not identified whether the hand at issue is his dominant

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hand. Third, Plaintiff’s moving papers are typewritten and clear, evidencing his ability to

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articulate his position, and there is no indication that he is relying on inmate assistance. Fourth,

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and finally, Plaintiff is not precluded from requesting extensions of time to prepare any necessary

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pleadings or papers.
Moreover, at this early stage in the proceedings, the Court cannot make a determination
that Plaintiff is likely to succeed on the merits, and based on a review of the record in this case,
the Court does not find that Plaintiff cannot adequately articulate his claims. Id.
For the foregoing reasons, Plaintiff=s motion for the appointment of counsel is HEREBY
DENIED without prejudice.
IT IS SO ORDERED.

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Dated:

/s/ Barbara

September 8, 2014

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UNITED STATES MAGISTRATE JUDGE

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A. McAuliffe

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