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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MICHAEL KLEIN,

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Plaintiff,
v.

1:13-cv-00600-GSA (PC)
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(Document# 38)

CONANAN,
Defendant.

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On December 29, 2014, Plaintiff filed a motion seeking the appointment of counsel.

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

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

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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, 109 S.Ct. 1814, 1816 (1989). However, in certain

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exceptional circumstances the court may request the voluntary assistance of counsel pursuant to

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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

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of 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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In the present case, Plaintiff argues that he is unable to afford counsel and his
This does not make Plaintiff’s case

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imprisonment will greatly limit his ability to litigate.

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exceptional. This court is faced with similar cases daily. Plaintiff also asserts that he “has only a

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tab score of 5.3,” but has not explained the meaning of this measurement or why it entitles him to

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appointment of counsel. (Motion at 4 ¶4.) While the court has found that “[l]iberally construed,

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Plaintiff has alleged facts indicating that Dr. Conanan failed to treat Plaintiff’s Hepatitis C,

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resulting in irreversible damage,” this finding is not a determination that Plaintiff is likely to

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succeed on the merits and at this juncture, the court cannot find that Plaintiff is likely to succeed

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on the merits. (Doc. 6 at 2:10-12.) Plaintiff’s medical claims do not appear complex, and based

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on a review of the record in this case, the court does not find that Plaintiff cannot adequately

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articulate his claims. Thus, the court does not find the required exceptional circumstances, and

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Plaintiff’s motion shall be denied without prejudice to renewal of the motion at a later stage of the

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proceedings.
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:

January 5, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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