Klein v. Conanan

Filing 40

ORDER Denying 38 Motion to Appoint Counsel signed by Magistrate Judge Gary S. Austin on 1/5/15. (Verduzco, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL KLEIN, 12 13 14 15 Plaintiff, v. 1:13-cv-00600-GSA (PC) ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL (Document# 38) CONANAN, Defendant. 16 17 On December 29, 2014, Plaintiff filed a motion seeking the appointment of counsel. 18 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 19 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to represent 20 plaintiff pursuant to 28 U.S.C. ' 1915(e)(1). Mallard v. United States District Court for the 21 Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in certain 22 exceptional circumstances the court may request the voluntary assistance of counsel pursuant to 23 section 1915(e)(1). Rand, 113 F.3d at 1525. 24 Without a reasonable method of securing and compensating counsel, the court will seek 25 volunteer counsel only in the most serious and exceptional cases. In determining whether 26 Aexceptional circumstances exist, the district court must evaluate both the likelihood of success 27 of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 28 complexity of the legal issues involved.@ Id. (internal quotation marks and citations omitted). 1 1 In the present case, Plaintiff argues that he is unable to afford counsel and his This does not make Plaintiff’s case 2 imprisonment will greatly limit his ability to litigate. 3 exceptional. This court is faced with similar cases daily. Plaintiff also asserts that he “has only a 4 tab score of 5.3,” but has not explained the meaning of this measurement or why it entitles him to 5 appointment of counsel. (Motion at 4 ¶4.) While the court has found that “[l]iberally construed, 6 Plaintiff has alleged facts indicating that Dr. Conanan failed to treat Plaintiff’s Hepatitis C, 7 resulting in irreversible damage,” this finding is not a determination that Plaintiff is likely to 8 succeed on the merits and at this juncture, the court cannot find that Plaintiff is likely to succeed 9 on the merits. (Doc. 6 at 2:10-12.) Plaintiff’s medical claims do not appear complex, and based 10 on a review of the record in this case, the court does not find that Plaintiff cannot adequately 11 articulate his claims. Thus, the court does not find the required exceptional circumstances, and 12 Plaintiff’s motion shall be denied without prejudice to renewal of the motion at a later stage of the 13 14 15 16 proceedings. For the foregoing reasons, Plaintiff=s motion for the appointment of counsel is HEREBY DENIED, without prejudice. IT IS SO ORDERED. 17 18 Dated: January 5, 2015 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 2

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