Edwards v. Desfosses, et al.

Filing 40

ORDER Denying Plaintiff's Motion For Appointment Of Counsel (ECF No. 38 ), signed by Magistrate Judge Stanley A. Boone on 9/30/2015. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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STEVEN R. EDWARDS,

Case No. 1:13-cv-01013-AWI-SAB-PC

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ORDER DENYING PLAINTIFF’S MOTION
FOR APPOINTMENT OF COUNSEL

Plaintiff,
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v.

(ECF NO. 38)

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A. DESFOSSE, et al.,
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Defendants.
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Plaintiff Edwards is a state prisoner appearing pro se and in forma pauperis in this civil
rights action pursuant to 42 U.S.C. § 1983.
On September 28, 2015, Plaintiff filed a motion for the appointment of counsel. (ECF
No. 38.) Plaintiff has not previously sought the appointment of counsel.
Plaintiff is advised that there is no constitutional right to appointed counsel in this action,
Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require any attorney
to represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court
for the Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional
circumstances the court may request the voluntary assistance of counsel pursuant to section
195(e)(1). Rand, 113 F.3d at 1525.
Without a reasonable method of securing and compensating counsel, the Court will seek
volunteer counsel only in the most serious and exceptional cases. In determining whether
“exceptional circumstances exist, the district court must evaluate both the likelihood of success
on the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the
complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted).
In the present case, the Court has considered Plaintiff’s moving papers, but does not find

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1 the required exceptional circumstances. LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987);
2 Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). Plaintiff is proceeding on a claim of
3 excessive force and failure to decontaminate. Plaintiff contends that the issues in this case are
4 complex and he cannot afford counsel.

The Court finds that the issues in this case are not

5 complex, and Plaintiff has adequately prosecuted this action.
While a pro se litigant may be setter served with the assistance of counsel, so long as a

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7 pro se litigant, such as Plaintiff in this instance, is able to “articulate his claims against the
8 relative complexity of the matter,” the “exceptional circumstances” which might require the
9 appointment of counsel do not exist. Rand, 113 F.3d at 1525 (finding no abuse of discretion
10 under 28 U.S.C. §1915(e) when district court denied appointment of counsel despite fact that pro
11 se prisoner “may well have fared better – particularly in the realm of discovery and the securing
12 of expert testimony.”) Accordingly, IT IS HEREBY ORDERED that Plaintiff’s motion for the
13 appointment of counsel is DENIED.
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IT IS SO ORDERED.

16 Dated:

September 30, 2015
UNITED STATES MAGISTRATE JUDGE

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