Calloway v. Biter et al

Filing 37

ORDER DENYING Plaintiff's Third Motion for Appointment of Counsel Without Prejudice 36 , signed by Magistrate Judge Stanley A. Boone on 12/8/16. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMISI JERMAINE CALLOWAY,

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Plaintiff,
v.
M.D. BITER, et al.,
Defendants.

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Case No.: 1:13-cv-00747-SAB (PC)
ORDER DENYING PLAINTIFF’S THIRD
MOTION FOR APPOINTMENT OF COUNSEL,
WITHOUT PREJUDICE
(ECF No. 36)

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Plaintiff Jamisi Jermaine Calloway is appearing pro se and in forma pauperis in this civil rights

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action pursuant to 42 U.S.C. § 1983. Plaintiff has consented to the jurisdiction of a United States

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Magistrate Judge. (ECF No. 8.)

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Now pending before the Court is Plaintiff’s third motion for appointment of counsel, filed

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December 7, 2016. (ECF No. 36.) Plaintiff states in support that he lacks a high school diploma or a

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GED, that his case is complex, that he lacks legal knowledge, and that he requires counsel to assist

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him in articulating his case.

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As has been previously explained to Plaintiff, he does not have a constitutional right to

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appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court

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cannot require any attorney to represent him pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United

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States District Court for the Southern District of Iowa, 490 U.S. 296, 298 (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 “exceptional

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circumstances exist, the district court must evaluate both the likelihood of success on the merits [and]

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the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the legal issues

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involved.” Id. (internal quotation marks and citations omitted).
The test for exceptional circumstances requires the court to evaluate a plaintiff’s likelihood of

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success on 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. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir.

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1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances common to most

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prisoners, such as lack of legal education and limited law library access, do not establish exceptional

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circumstances that would warrant a request for voluntary assistance of counsel.
In the present case, the Court does not find the exceptional circumstances necessary to request

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volunteer counsel. At this early stage in the proceedings, the Court cannot find any likelihood of

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success on the merits. Nor does the Court find that Plaintiff cannot adequately articulate his claims or

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respond to the Court’s orders. In several of his pleadings, the Court in fact found that Plaintiff stated

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cognizable claims, although his most recent amended complaint was dismissed with leave to amend

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for the failure to state any claim upon which relief could be granted. (ECF No. 35.) Plaintiff is advised

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that he is not precluded from renewing the motion for appointment of counsel at a later stage of the

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proceedings, if appropriate.
Accordingly, it is HEREBY ORDERED that Plaintiff’s third motion for appointment of

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counsel, filed December 7, 2016 (ECF No. 36), will be DENIED without prejudice.

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IT IS SO ORDERED.

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Dated:

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December 8, 2016
UNITED STATES MAGISTRATE JUDGE

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