Whitfield v. Hernandez et al

Filing 46

ORDER DENYING 45 Plaintiff's Motion for Appointment of Counsel, signed by Magistrate Judge Jennifer L. Thurston on 10/9/2014. (Hall, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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STEVEN WHITFIELD,

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Plaintiff,

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v.
JOHN HERNANDEZ, et al.,
Defendants.

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Case No.: 1:13-cv-0724 - JLT
ORDER DENYING PLAINTIFF’S MOTION FOR
APPOINTMENT OF COUNSEL
(Doc. 45)

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On October 2, 2014, Steven Whitfield filed motion for appointment of counsel. (Doc, 45.)

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Plaintiff asserts counsel should be appointed because his “legal research conducted thus far reveals . . .

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no applicable case construing third-party parole searches condones or authorizes [the] demanded entry

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into [his] bedroom.” (Id. at 1.) He reports that his settlement demands have been rejected by the

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defendants, who have also demanded a jury trial though Plaintiff requested a bench trial. (Id.) Plaintiff

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appears to assert that “the inability of the pro se plaintiff to adequately present his legal claim in light of

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the complexity of the issue” weighs in favor of the appointment of counsel. (Id. at 2) (citing Crowe v.

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County of San Diego, 508 F.3d 406 (9th Cir. 2012)).

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Importantly, in most civil cases, there is no constitutional right to counsel in most civil cases,

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but the Court may request an attorney to represent indigent persons. 28 U.S.C. § 1915(e)(1). Plaintiff

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is advised that the Court cannot require representation of a plaintiff pursuant to 28 U.S.C. § 1915.

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Mallard v. U.S. District Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989).
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Nevertheless, in “exceptional circumstances,” the Court has discretion to request the voluntary

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assistance of counsel. Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997).

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To determine whether “exceptional circumstances exist, the district court must evaluate both the

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likelihood of success of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in

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light of the complexity of the legal issues involved.” Rand, 113 F.3d at 1525 (internal quotation marks

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and citations omitted). Here, Plaintiff has demonstrated he is able to respond to the Court’s orders and

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meet deadlines set by the Court. In addition, Plaintiff is very articulate and able to state his position in

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an intelligible manner before the Court. Further, at this early stage in the proceeding, the Court is

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unable to make a determination that Plaintiff is likely to succeed on the merits. Therefore, the Court

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does not find the required exceptional circumstances at this time.
Accordingly, IT IS HEREBY ORDERED: Plaintiff’s motion for the appointment of counsel
(Doc. 45) is DENIED WITHOUT PREJUDICE.

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IT IS SO ORDERED.
Dated:

October 9, 2014

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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